Jackson Browne v. John McCain re: Copyright Infringement

Singer Jackson Browne is suing US Republican presidential candidate John McCain for using one of his songs without permission. (NY Times)

McCain used Browne’s 1977 hit “Running on Empty” in a commercial shown in Ohio. Browne claims that the use of the sone infringes hiis copyright and will make people conclude thaT he endorses McCain. He is seeking $75,000 on damages.

On a different front, a week ago on Swingtown,  Laurie ran away from the cabin so she could hitchhike back to Chicago so whe and Doug could go to a Jackson Browne concert. 

All in all, a big week for Jackson Browne. And I am not sure that “Running on Empty” is the best song for a campaign.

UMG Recordings, Inc. v. Troy Augusto, et al.

The Central District of California granted summary judgment in UMG Recordings, Inc. v. Troy Augusto, No. CV 07-03106. (SJO), regarding the legality of reselling promo CDs. Mr. Augusto acquired promo CDs and resold them on eBay, which Universal alleged infringed their copyright due to the following language placed on the CDs:

This CD is the property of the record company and is licensed to the intended receipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.

Augusto argued that his resale of the CDs was protected under the first sale doctrine. The court agreed.

Finally, a voice of reason in the wilderness. Thank you Judge Otero for a very well written opinion.

Here is the full opinion (pdf).

District Court Finds Portion of Copyright Remedy Clarification Act Unconstitutional

This month, in Marketing Information Masters v. The Trustees of the California State University (full PDF of decision here), the US Dist. Ct. for the S. Dist. of Cal. found the Copyright Remedy Clarification Act to be unconstitutional for removing sovereign immunity for state workers working in their official capacity. The court determined that Congress exceeded its power under the 14th Amendment and that state employees retain immunity for copyright infringement.

 See also Dear Professor: “You’ve Been Sued” 

For more history, specifically the Puerto Rico case of De Romero v. Institute of Puerto Rican Culture, 2006 WL 3735352 (D.P.R. Dec. 15, 2006) in which the court also found that Congress exceeded its power under 14th Amendment, read this article by Prof. Patry, and the last paragraph of that case.

New Arkansas RIAA Lawsuits Coming Soon to a Federal Courthouse Near You

I have gotten a number of phone calls and emails from students (as well as parents and attorneys of students) at the University of Arkansas at Fayetteville. Suffice it to say that there is another rash of RIAA lawsuits on its way. This time, all I have seen have been on the University of Arkansas network. I work for two entities of the U of A system, so can’t comment on the disclosure of student information . . . I will however point out that in Arista v. Does 1-21, Boston Univ. recently fought the RIAA’s subpoenas. The court quashed them based on ”the privacy rights of students, and the existence of First Amendment issues in disclosing the identities of anonymous people accused of copyright infringement, and engaged in a balancing test between those rights and the rights of copyright owners” The 52 page ruling just on the subpoenas is a judicial tour-de-force and a good starting point for any university that would like to fight to uphold the privacy rights of students.

I think that these cases are winnable for the defendant, mostly because no one every forces the RIAA to prove its case and because the argument that “making available” = distribution flies in the face of historical copyright law. Thankfully, the courts have begun to see this as well. . . although to differnet degrees.  William Patry, the author Patry on Copyright and copyright attorney for Google (Prof. Patry . . . if you need a passionate copyright attorney from a state school for your team, just say the word), recently worte about the three recent cases which rejected the “making available” theory on his blog. The documents from the three cases are located here:

Atlantic v. Brennan
London-Sire v. Doe
Elektra v. Barker

The most troubling of this cases is Barker, in which Judge Karas equated distribution with publication - something I do not feel is intended by section 106.

For more on this issue, read The Patry Copyright Blog: The recent making available cases