Monthly Archives: December 2010

Just some house cleaning, moving some stuff around.

[11/29/2010] Supreme Court Denies Cert. for Whitney Harper, but Alito Dissents

The Supreme Court has denied Whitney Harper’s cert. petition regarding whether she was entitled to the lower statutory damage under § 504(c)(2) as an “innocent infringer.”  Judge Alito dissented, noting that the notice requirements contemplated by 402(d) might not apply in a digital world.

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[11/9/2010] Copyright Office’s Notice of Inquiry regarding Pre-1972 Sound Recordings
The Copyright Office has issued a Notice of Inquiry regarding whether pre-1972 sound recordings should be brought under the federal Copyright Act.  Under the Sound Recording Amendment of 1971, sound recordings created after February 15, 1972 would be eligible for federal copyright protection, but sound recordings made before that date would only enjoy protections (if any) under state laws.  Initial comments are due December 20.
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[11/4/2010] Thomas-Rasset Jury Awards $1.5mm
The third time is definitely not a charge for Thomas-Rasset.  The jury awarded the record labels $1.5mm ($62,500/song).  Recall that the first jury awarded $220,000, after which the judge awarded a new trail based on faulty jury instructions, and the second jury awarded $1,920,000, after which the judge remitted to $54,000.  Below are the jury instructions and jury award.
Prof. Nesson filed an amicus arguing that the jury instructions should not include the available range of statutory damages; i.e., the jury should not be informed that–because Thomas-Rasset was previously found to be a willful infringer–it was required to award damages between $750 and $150,000.  The judge obviously did not buy Nesson’s argument.
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[11/3/2010] iTunes to Extend Preview to 90 Seconds
According to Engadget, iTunes has notified record labels of its intention to extend preview clips from 30 to 90 seconds.  You may recall that music publishers were already concerned that the 30 second clips implicated a public performance right, which Apple does not currently acquire for it iTunes store.  See that story here.

Record Labels and Dept. of Justice File Appeal Briefs in Tenebaum

The record label plaintiffs have filed their appeal brief in the Tenebaum case, appealing the district court’s ruling that the jury’s $675,000 verdict was unconstitutional.
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The Department of Justice also filed an appeal brief.  In addition to focusing on the district court’s misapplication of the Gore standards in determining whether the jury’s statutory damages were constitutional, the DOJ also addressed the district court’s failure to utilize its powers of remittitur.  Interestingly, the DOJ found the same flaw in the district court’s logic that I did; namely, the district court concluded that the original “jury’s award was far in excess of any that could be justified by plaintiff’s actual harm or the deterrent purposes of the statute.   If that is so, then there is no reason to expect that a subsequent properly instructed jury would choose an award of the same magnitude.  Indeed, if a new, properly instructed jury would, on the same evidence, be highly likely to return a verdict of comparable magnitude, then the court’s conclusion that the verdict is grossly disproportionate to defendant’s offense is itself open to serious question.”
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Updated 10/31/10

Irish High Court Rules ISP Does Not Have to Disconnect File Sharer

See prior settlement between record labels and Irish ISP here:
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[Posted: October 12, 2010]

Works for Hire in Sound Recordings: Fifty-Six Hope Road Music v. UMG Recordings
The family of Bob Marley sued Island Records alleging that the renewal term copyrights in the sound recordings reverted to them under the Copyright Act of 1909.  At issue were some of Marley’s most famous recordings, including his “Stop that Train” and “Stir It Up” from 1973’s Catch a Fire, “Get Up, Stand Up” and “I Shot the Sheriff” from 1974’s Burnin’, “Lively Up Yourself” and “No Woman, No Cry” from 1974’s Natty Dread, “Roots, Rock, Reggae” and “War” from 1976’s Rastaman Vibration, and “Jamming” and “Exodus” from 1977’s Exodus.  Marley’s widow and children argued that Marley’s sound recordings were not “works made for hire” under the Copyright Act and, therefore, ownership reverted to Marley’s estate.  Because the songs were all recorded prior to January 1, 1978, the rights in the sound recordings are governed by the 1909 Copyright Act, which has a different definition of “works made for hire” than the 1976 Act.  Applying the Second Circuit’s “interest and expense” test, the Court determined that Island was the “author” of the sound recordings for purposes of the Copyright Act.
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Royalties for Digital Sales: F.B.T. Productions v. Aftermath Records
Eminem sued Aftermath over the royalties Aftermath paid for digital downloads.  Eminem argued that his contract with Aftermath required royalty payments under the “Masters Licensed” provision instead of the “Records Sold” provision.  The district court had denied Eminem’s motion for summary judgment on this point and a jury had returned a verdict in favor of Aftermath.  The 9th Circuit reversed, finding that the recording contracts were unambiguous on this point.
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Innocent Infringers and File Sharing: Maverick Records v. Harper
In 2004, record labels sued teenager Whitney Harper for allegedly sharing 37 songs on a file-sharing network.  After a jury returned a verdict in favor of the record labels, the district court reduced the damage award to $200 per song, finding that Harper, who argued she believed file-sharing was akin to Internet radio, was an innocent infringer.  The 5th Circuit overturned the district court and ordered Harper to pay $750 per song ($27,750) rather than $200 ($7,400) in damages.  The 5th Circuit concluded that, because the record labels had affixed a copyright notice to the sound recordings, Harper could not qualify as an innocent infringer.  Harper appealed to the Supreme Court, which recently requested that the record labels brief their side of the case.
Fifth Cir. Opinion
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Harper’s Pet. for Cert.
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Nesson’s Amicus
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Record Label’s Response
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updated 10/16/10

Public Performance in Digital Downloads and License Fees: ASCAP v. Yahoo! / Real Networks
The 2nd Circuit upheld Judge Connor’s 2007 decision that a digital download did not implicate a public performance of the underlying musical work, but vacated his 2009 opinions on license fee determination and remanded for further proceedings.  The affirmance of the digital download decision appears to foreclose any argument that digital download services such as iTunes require public performance licenses for their sales (still to be litigated is whether the 30-second previews require a separate license).  By vacating the 2009 final fee decision, the 2nd Circuit has denied ASCAP one of its recent signature rate court “wins.”  At the time, ASCAP stated that “Based on the formula established by the Court, the total payments to be made to ASCAP and its membership by these three services for that full period could reach $100 million.
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