Monthly Archives: February 2011

Tenenbaum Reply Brief

The First Circuit is one step closer to ruling on the record labels’ appeal of Judge Gertner’s decision to reduce the jury award in the Tenenbaum case based on its alleged violation of the Due Process Clause of the Constitution.  I continue to believe that the First Circuit will reverse, but what I found most interesting about the record labels’ reply brief is their discussion of the DOJ’s brief arguing that lower court should have used its power of remittitur to reduce the award and avoided the Constitutional question.

The record labels pose the question thusly: “if a remittitur can only be ordered when and to the extent that the Due Process Clause requires a reduction in the jury’s award, then the constitutional question is not avoided.  A court cannot apply a standard that “afford[s] defendants a full measure of [constitutional] protection,” Govt.’s Opening Br. 20, without
deciding what the full measure of constitutional protection is.  Simply calling it a remittitur does nothing to avoid a constitutional ruling and indeed raises difficult practical problems of its own.”

The reply brief is below:
[scribd id=48663933 key=key-1jdjbeg8ku27o6s68l2l mode=list]

Litigation Update

Several interesting cases in the last couple of weeks.

The first is Kling Corp. v. CBS Studios, Inc., 11-civ.-1066 (C.D. Cal.).  Plaintiff represents the publishing rights of Heywood Kling who co-wrote the theme song to Texaco Star Theater, a TV show hosted by Milton Berle from 1948 to 1956, entitled “We are the Men of Texaco.”  In 1985, the TV show Family Ties, starring Michael J. Fox, ran an episode that included a portion of the song, for which CBS obtained a synch license, but only for television broadcast.  In 2008, CBS released DVD versions of the Family Ties episode.  Apparently realizing that its synch license didn’t include DVDs, in 2010 CBS sent an unsolicited letter to Kling offering $19,000 to expand the synch license.  This lawsuit resulted.

The complaint is below:
[scribd id=48659652 key=key-12k5cp232dyooa3swjm1 mode=list]

The theme song is below:

The second is Disney Enterprises, Inc. v. Hotfile Corp., 11-cv-20427 (S.D. Fla.).  Several movie studios are suing popular cyberlocker site for copyright infringement, aruging that “defendants pay people to put infringing copies of plaintiffs’ popular works on Hotfile’s computer servers, and then use the lure of those copyrighted works (and the copyrighted works of others) to entice users to pay defendants for the privilege of accessing and downloading the works from defendants’ computer servers.”  While many of these cyberlocker services are located outside the US, Hotfile is run by Anton Titov from his home in Florida, providing an easy venue for suit.

One interesting–and complicating–aspect of the Hotfile model is that Hotfile does not index content on its website in a searchable form; i.e., you don’t go to Hotfile and search for The Expendibles.  Rather, each user who uploads content is encouraged to disseminate the specific URL referencing the file that user has uploaded to the Hotfile server.  This makes Hotfile different from services like Napster and Grokster and more difficult for the plaintiffs to prove that Hotfile is liable for the actions of its users.

The complaint is below:
[scribd id=48660465 key=key-1j0yr6gntarve54a2aop mode=list]

The third is Openmind Solutions, Inc. v. Does 1 – 2925, 11-civ-92 (S.D. Ill.).  Plaintiff is a producer of adult films with such names as Stuffed Petite and 1,000 Facials.  Plaintiff is suing 2,925 John Doe defendants alleged to have infringed Plaintiff’s copyright by illegally downloading porn from BitTorrent sites.  What makes this case different, however, is that Plaintiff is seeking to certify the defendants as a class (like a plaintiff class action lawsuit, but in reverse).

As Openmind explains, “In BitTorrent vernacular, individual downloaders/distributors of a particular file are called peers. The group of peers involved in downloading/distributing a particular file is called a swarm. A server which stores a list of peers in a swarm is called a tracker. A computer program that implements the BitTorrent protocol is called a BitTorrent client. Each swarm is unique to a particular file.”  This last point is key because it means that a group of people (“peers”) are all downloading the exact same file–i.e., there is commonality among that group with respect to the particular file that was copied.

Openmind seeks to certify as a class “All persons, except those with whom settlement has been reached, engaged in copyright infringement activity via BitTorrent file sharing protocol during relevant time period (October 2010, until the date the Court enters an order certifying a defendant class) against Plaintiff’s copyrighted works associated with the torrent files enumerated in Exhibit A.”  It is an interesting theory, but I highly doubt it will be successful.  There are simply way too many due process considerations to try to treat these John Doe defendants as a class.

The complaint is below:
[scribd id=48662518 key=key-88jpf9bkcu3i7rgg2hb mode=list]

Finally, there is Nu Image, Inc. v. Does 1 – 6,500, 11-cv-301 (D. D.C.).  Nu Image is the producer of the Stallone mega-action movie The Expendibles.  This is another of the suits filed by Dunlap, Grubb & Weaver, the firm behind US Copyright Group, which has been very active in these John Doe file sharing cases.  These cases have run into a variety of problems with judges in a variety of jurisdictions questioning the joinder of all these Does and the personal jurisdiction issues that presents.

The complaint is below:
[scribd id=48663048 key=key-2f6tiuv1nk60lcb3hrul mode=list]

Jimi Hendrix’s Persona Died with Him

A while ago I commented on the on-going legal battle being waged by the estate of the late Jimi Hendrix against those who sell merchandise incorporating Hendrix’ likeness.  In a severe blow the the Hendrix estate, Judge Zilly has found Washington’s Personality Rights Act (WPRA) unconstitutional.

By way of history, the WPRA, which was first enacted in 1998, was amended in 2008 in response to the last Hendrix litigation (Experience Hendrix, LLC v. The James Marshall Hendrix Foundation, 03-3462 (W.D. Wash. 2005)).  As amended, the WPRA provides that a celebrity’s right of publicity does not expire at his death, regardless of the law of his domicile .  In other words, and of critical importance in this case, under the WPRA Jimi Hendrix maintained his right of publicity even after his death–and could pass that right down to his estate upon his death–even though the law of the state of New York, of which Hendrix was a domiciliary at the time of his death, does not recognize a posthumous right of publicity.  That is to say, the amended WPRA included a choice of law provision that required courts in Washington to choose Washington state law rather than the law of the state in which the dead celebrity was domiciled in determining whether such celebrity had an enforceable posthumous right of publicity.

In his opinion, Judge Zilly held that this choice of law provision was unconstitutional.  Judge Zilly formed the constitutional question thusly: “the analysis boils down to whether the selection of the forum’s law rather than the domicile’s law is arbitrary or fundamentally unfair.”  In answering this question affirmatively, Judge Zilly noted that “Courts look to the law of the domicile for a reason.  The domicile has the requisite contacts with a particular individual or personality to generate a state interest in defining his or her property rights and how they may be transferred.  To select, as the WPRA suggests, the law of a state to which the individual or personality is a stranger, constitutes no less random an act than blindly throwing darts at a map on the wall.”

The decision is below:
[scribd id=48658751 key=key-xsbsl9uzkr0j75vqynh mode=list]