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.

Court dismisses Tur v. YouTube/Google suit

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Over a year ago, Robert Tur was the first person to bring suit against Youtube for copyright infringement. At issue, video coverage Tur shot of the 1992 Los Angeles riots (search Youtube for L.A. riot video). This week at Tur’s bequest, a Los Angeles federal court judge dismissed the suit.a copyright infringement lawsuit against YouTube in order to allow the plaintiff — a Los Angeles video news service — to join a proposed class-action lawsuit pending in New York against the site.

The dismissal, requested by Robert Tur and his Los Angeles News Service, was granted last Friday. YouTube opposed the dismissal arguing, among other things, that the class-action suit will proceed at a slower pace than the Tur case, which could result in increased liability for the site if an adverse judgment is entered against it

Capitol Records, et al v. Jammie Thomas – Full text of jury instructions

As there has been much talk about the validity of the jury instructions in Capital Records v. Thomas, especially instruction no.s 14 and 15 , I thought it would be nice for everyone to see them in their entirety. I think that jury instructions should be taken and evaluated as a whole, as the jury see’s them, not piecemeal. While each must be a correct statement of the law on its own, the effect on the jury is as a whole. All documents related to this case can be found at Justia.

Continue reading

Capitol Records, et al v. Jammie Thomas – Jurors wanted maximum fine

Jurors from Capitol Records, et al v. Jammie Thomas are talking, and what they are saying is going to make a lot of people very angry. Several of the jurors wanted to give the maximum penalty of $150,000 per song for each of the 24 songs ($3.6 million total). In the end, they compromised at under $10k per song, for a total of $222,000.

[Juror] Reinke said she wasn’t sure at first how much Thomas should pay. The jurors wrote on unsigned slips of paper the amounts they thought were right, Reinke said. They piled the papers on a table, and the foreman read off the amounts.

“A few said we could go up to 150 (thousand), and then other people said, ‘No, that’s way too high,”‘ she said. “We just all discussed it and gave our views and came up with an agreeable amount.”

In short, the jurors wanted to both punish Thomas and deter others. Read the full story at “Juror: Some on music sharing jury wanted maximum $150,000 per song, $3.6M total”

Do not steal images on the internet

Since the mid-90’s, people have been posting pictures on the internet. And for the same amount of time people have been stealing them for personal and commercial use. Take for instance the thumbnail screenshot from Family Guy below. If I were compiling and printing a book about cartoons, then my use would be infringement. If I were making an advertisement for a magazine, then my use would be infringement. As I am using it as part of critical commentary (or news reporting), then it is an exempted use under 17 U.S.C. § 113(c):

“(c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.”

In contrast, this blog posting describes how a picture of the author’s son listening to an iPod was taken from the internet and put in print ads [edit:  by electronics retailer Vinderen Elektriske]. While the outcome was a settlement by the infringer for $4000, it is still a good example of what not to do. In the article the author indicates that he would have gladly given permission to use the image for much less (in exchange for a Nintendo Wii).  Before all the graphic designers out there think that paying only $4k if ever caught is a good risk to take, I would like to point out that this instance was not in the United States, so your mileage may vary. In the U.S. the damages run between $750 and $30,000 per infringement, and up to $150,000 if the infringement is willful. 17 U.S.C. § 504(b),(c). In addition, there is the possibility of criminal charges and jail time of up to one year if for infringement that is a commercial use, such as in the story above.

“(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
. . .
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.”

18 U.S.C.  § 2319(a), (b).

Bourne Co. v. Twentieth Century Fox Film Corporation, et al. – “When you wish upon a Weinstein” lawsuit filed

family_guy_jew.jpgFiled last week in the Federal District court, New York Southern District Court was Bourne Co.  v. Twentieth Century Fox Film Corporation, et al, Case Number:  1:2007cv08580, Filed:  October 3, 2007. The owner of the copyright of the song “When You Wish Upon a Star” is suing 20th Century Fox (and others including Seth McFarlane personally) for their song called “I Need a Jew” included in an episode of Family Guy. The original episode, “When you wish upon a Weinstein,” debuted in 2003 (though created in 2000), so they are primarily concerned about reruns and DVD sales. Honestly, this episode is one of the funniest Family Guy episodes, second only the epic episode “Stewie loves Loise.”  

I would represent 20th Century Fox (or any of the other defendants) for free on this one. The U.S. Supreme Court said parody is protected in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), seems like a good place to start. I did like how the complaint (pdf) describes the original songs lyrics as “beautiful and heartfelt” and characterizes The Family Guy as an inferior rip-off of The Simpsons.  Articles about this at The Associated Press, MSN, and Undercover.

Capitol Records, et al v. Jammie Thomas – Guilty verdict.

A reprint of the AP newswire can be found at CNN Money: “Guilty verdict in music file-sharing case”. The bottom line is exactly what you thought it would be when you first heard about the case: guilty. The case focused on 24 songs, for which Thomas will now have to pay damages of $9,250 each for a total of $222,000. This is of course much better than it could have been, the plaintiffs had alleged she shared 1,702 songs online and the $9,250 is far below the statutory limit of $30,000 per infringment (see 17 U.S.C. 504(c)(1)). As the jurors found the infringment was willful, the actual statutory limit was $150,000 per infringment. Throughout Thomas denied sharing files or having a Kazaa account, a statement had to believe givent he account was setup using the same online handle, “tereastarr,” that Thomas had used for many years. The IP addresses matched. She replaced her hard drive after the infringment had taken place. In short, all evidence pointed to her (or her kids) and she may have destroyed evidence. I don’t see how, in a civil case, they had a chance to win this one on the arguments made.

Arkansas IP Litigation Cases for the Week of September 29, 2007

The U.S. District Courts for the Eastern or Western District of Arkansas was chosen as the forum for litigating the following case(s), as published by Justia:

  • Virgin Records America Inc et al v. Does, Case Number 4:2007cv00863, Filed:  September 20, 2007, Court:  Arkansas Eastern District Court 

    Virgin Records America Inc, Atlantic Recording Corporation, BMG Music, Capitol Records Inc, Elektra Entertainment Group Inc, Interscope Records, LaFace Records LLC, Motown Record Company LP, Priority Records LLC, Sony BMG Music Entertainment, UMG Recordings Inc, Arista Records LLC, Warner Brothers Records Inc and Zomba Recording LLC  have sued multiple Does for copyright infringement under 17 U.S.C. § 101 et seq. for online file sharing (I have a few novel defenses for these cases I need to try out).

  • Lewis & Clark Outdoors, Inc. v. L. C. Industries, Inc., Case Number:  5:2007cv05164, Filed:  September 26, 2007, Court:  Arkansas Western District Court 

    Lewis & Clark Outdoors, Inc.  has sued L. C. Industries, Inc. for trademark infringment under the Lanham Act, 15 U.S.C. 1051 for fraudulently obtaining a federal registration for “Lewis N. Clark.”

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