Subscribe: Copyrights & Campaigns
Preview: Copyrights & Campaigns

Copyrights & Campaigns

Ben Sheffner's notes on copyright, First Amendment, media, and entertainment law, and political campaigns

Updated: 2018-03-18T04:15:53.867-07:00


A Blogging Hiatus


When I started this blog in December 2008, I said I wanted to counter the “shocking lack of balance in discussion of copyright and related issues on the Internet.” For almost two and a half years, I’ve tried to do just that. Armed with nothing but free Blogger software and a not-so-free PACER account, I’ve done my best to provide copyright owners’ side of the story on the major anti-piracy cases of the day, while countering the misinformation about copyright that too often dominates the blogosphere. And, thanks to help, tips, and encouragement from countless others who fight in obscurity for creators’ rights – not to mention the antics of Joel Tenenbaum, Jammie Thomas-Rasset, and most of all, Charlie Nesson – it’s been a blast. And hopefully I’ve done a small part to demonstrate why, when the studios, record labels, and music publishers go to court to enforce their rights, they usually win.

So it’s with a sense of accomplishment but some regret that that I’m putting the blog on hiatus for the foreseeable future. On February 28 I started in a new position as Content Protection Counsel at the Motion Picture Association of America, where my primary responsibility will be litigating anti-piracy cases on behalf of the MPAA’s member studios. For reasons that I think most litigators will understand, I’ve concluded that it won’t be possible to continue the blog in my current role; the issues of privilege, confidentiality, and conflicts, even if ultimately surmountable, are simply too dicey to worry about day-to-day. I plan to leave the blog up as long as Blogger will host it; the disclaimer that I’ve posted since the beginning still applies: “This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers.”

I encourage anyone and everyone who knows and cares about these issues to speak out, blog, comment on other blogs, and do whatever you can consistent with your day job. There is plenty of room out there for thoughtful commentary; I’d particularly recommend readers bookmark Terry Hart’s “Copyhype,” which since last summer has been providing rigorously researched debunking of some of the copyleft’s latest tropes.

Thanks again to everyone who has helped out over the past couple years. I’m still reachable at copyrightsandcampaigns [at]

Court: Merchandising of Shepard Fairey 'Obama Hope' image not fair use; factual issues remain on substantial similarity


The court in the case involving Shepard Fairey's use of an AP photograph in his famous "Obama Hope" poster has ruled that a company that manufactured and distributed clothing bearing the Obama Hope image under license from one of Fairey's corporate entities did not engage in fair use. The court, however, held that there remains a factual dispute whether the images used by One 3 Two, Inc. on its merchandise were "substantially similar" to the AP photo. Judge Alvin Hellerstein did not explain his reasoning in his brief summary order. Trial on the remaining issues is set for March 21. Here is One 3 Two's opening brief, and the AP's.
Shepard Fairey Summary Judgment Order (object) (embed)

The claims between the AP and Fairey and his corporate entities have been dismissed pursuant to settlement.

AP and Shepard Fairey settle case; claims against corporate entities remain


The Associated Press announced that it has "settled in principle" its copyright case against artist Shepard Fairey over his use of an AP photograph in the iconic "Obama Hope" poster. The announcement of the settlement comes a little more than seven months after the judge in the case stated at a hearing, "sooner or later, The Associated Press is going to win" the case and urged settlement.

According to the AP's announcement:
In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the image and share the rights to make the posters and merchandise bearing the image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.
The AP's claims against other Fairey-related entities, however, remain. So do its claims against One 3 Two, Inc., a company that manufactured and distributed clothing bearing the Obama Hope image under license from Obey Giant, one of Fairey's entities. One 3 Two's summary judgment brief argues that it didn't copy protectable elements of the AP's photo but, for procedural reasons, does not address fair use. The AP's brief does argue that Fairey's and One 3 Two's use of its photo was not fair.

Still unknown is the status of the federal grand jury investigation of Fairey for his admitted falsehoods and evidence spoliation regarding which photograph he used as a basis for the poster.

Harvard shocker: Crimson rails against piracy, endorses university 'three strikes' penalty


It's less than a mile from Harvard Law School's Berkman Center to the offices of the Harvard Crimson. But it doesn't seem that the Berkman Center's ideas have made that short journey south. From a Crimson editorial that ran Monday:
Recently, the Motion Picture Association of America began sending thousands of letters to colleges and universities across the country, reminding them of their obligation to set up a "written plan to effectively combat the unauthorized distribution of copyright material by users of the institution's network" under the Higher Education Opportunity Act of 2008. Because we believe that intellectual property rights are important and the unauthorized downloading of copyrighted music, movies, and television programs is wrong, we applaud this move and hope that universities abide by the guidelines set down in the HEOA.

Our support for the MPAA’s actions is based on our belief that the unauthorized downloading of music, movies, and television programs, although easy, is questionable at the most basic level. In our postindustrial economy, the protection of intellectual property rights is important for several reasons. First, these rights must be safeguarded in order to provide an incentive for innovation. Without any guarantee of legitimacy, entrepreneurs will have no motivation to create new intellectual property, as it could be stolen at any time. Second, at a broader level, intellectual property rights are important because each person has a fundamental right to enjoy the fruits of his or her mental labor. Intellectual entrepreneurship requires a broad societal commitment to the rule of law and the importance of private enterprise.
Read the whole, excellent, thing.

Washington Legal Foundation: 'The Supreme Court Left Most Copyright Litigants Wanting in 2010'


On the Washington Legal Foundation's blog, Brad R. Newberg of Reed Smith LLP has a good summary of the Supreme Court's action (and inaction) on copyright in 2010. Here's the intro:
It has been a busy month for the Supreme Court not tackling copyright issues. On November 29, 2010, the Court denied certiorari in two copyright cases, Harper v. Maverick Recording Co., No. 10-94, and Bryant v. Media Right Productions, No. 10-415. Then, on December 13, it announced that no decision would be issued in Costco Wholesale Corp. v. Omega, S.A., No. 08-1423, due to a 4-4 split (Justice Kagan was recused). Along with the Court’s decision back in March to avoid the Section 411 registration/application issue in Reed Elsevier, Inc. v. Muchnick, 2010 will end with the Supreme Court having missed some opportunities to clarify parts of the Copyright Act that have real-world ramifications for copyright owners, users, and legal practitioners.
Definitely read the whole thing.

New House Judiciary Chaiman Smith vows to protect IP


Rep. Lamar Smith (R-TX), currently the ranking Member on the House Judiciary Committee, announced today that he will serve as chairman in the next Congress. And he made clear that he will continue the committee's strong support for intellectual property rights:
As Chairman of the Committee, I will focus on efforts to strengthen national security, protect intellectual property, prevent frivolous lawsuits and keep children safe from Internet sex predators. The Judiciary Committee will support industries that employ millions of Americans by protecting their patents and copyrights.
(h/t TechDailyDose)

Thomas-Rasset: I owe nothing; labels seek injunction; court to Nesson: you're no amicus of mine


Several developments in the case of Jammie Thomas-Rasset following the third jury's award of $1.5 million to the major record labels in their copyright infringement suit:
  • Thomas-Rasset is seeking to have the award reduced to zero, on constitutional grounds. She is explicitly forgoing an argument based on common-law remittitur, the means by which the court reduced the second jury's award of $1.92 million down to $54,000. The court's decision on this motion -- which I expect him to grant, at least in part -- will allow one or both sides to appeal immediately to the Eighth Circuit, mercifully sparing all parties a fourth trial.
  • The labels are seeking an injunction against further infringement by Thomas-Rasset via peer-to-peer or other means.
  • The court told Harvard Law Professor Charles Nesson "thanks, but no thanks," rejecting his proposed amicus brief attacking the jury's award. "The proposed brief would not be of assistance to the Court," ruled Chief Judge Michael Davis of the District of Minnesota. " "Not so much as a thank you for the effort," lamented Nesson, adding, ":<("

C&C again named to ABA Journal's top 100 law blogs


I'm pleased to report that for the second year in a row the editors of the ABA Journal have named Copyrights & Campaigns one of the top 100 legal blogs. Thanks to all who have read, commented, tipped, passed along documents, and otherwise contributed to this effort. Posting hasn't been as frequent this year because of my day job, but I'm still blogging, as well as writing a regular legal column for Billboard.

If you're so inclined, you can vote for C&C as the top blog in the IP category here.

Supreme Court denies cert. in Harper 'innocent infringer' case


The Supreme Court today declined to hear a case challenging a lower court's decision that the "innocent infringer" defense under 17 U.S.C. § 504(c)(2) does not apply in a case of peer-to-peer infringement where the copyright owner had affixed proper notices on physical CDs embodying the work at issue. See 17 U.S.C. § 402(d) ("If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504."). The High Court's action leaves in place the Fifth Circuit's decision in in Maverick Recordings v. Harper, one of the major record labels' cases against an individual p2p user. In Harper, the defendant, a teenage girl, argued that she qualified for the defense -- actually, a limitation on statutory damages to $200 per work -- because she was not aware that she was engaged in infringing activity. Accord BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).

Justice Samuel Alito filed a dissent to the denial of cert., questioning whether Section 402(d) was meant to apply to a digital file, as opposed to a copy made directly from a physical object like a CD. See Order at 26.

CLE event to explore uses of music in political campaigns


Next Wednesday, Nov. 17 I'll be participating in a CLE event that will explore various legal issues related to the use of music in political campaigns. Anyone can participate (for a fee) via telephone conference or live webcast hosted by the ABA. Details below:The Politics of Fair Use:A Practical Discussion of Fair Use Principles Using Recent Examples of Popular Music in Political CampaignsDate: Wednesday, November 17, 2010Format: Teleconference and Live Audio WebcastDuration: 60 minutes Sponsors:The American Bar Association Section of Intellectual Property Law, Forum on the Entertainment and Sports Industries and the ABA Center for Continuing Legal Education12:30 PM-1:30 PM Eastern11:30 AM-12:30 PM Central10:30 AM-11:30 AM Mountain9:30 AM-10:30 AM PacificProgram DescriptionRecently, high profile politicians including John McCain, Charlie Crist, and Chuck DeVore have had lawsuits brought against them for using the music of famous musicians such as Jackson Browne, David Byrne, and Don Henley in their campaigns without receiving the necessary permissions and licenses. What rights do politicians have to use popular music at their live events and in advertisements? Are such uses a "fair use"? Our expert panel will discuss these issues and use them as a means to review principles of the Fair Use doctrine.Program FacultyRobert Clarida (Moderator) is the partner in charge of the copyright practice at the New York firm of Cowan, Liebowitz & Latman, P.C., which was named “Copyright Firm of the Year” for both 2008 and 2009 by Managing Intellectual Property magazine. He has conducted jury trials, argued federal appeals, and served as lead litigation counsel in a number of reported federal copyright cases. He also counsels clients on non-litigious copyright matters, and has been the principal drafter of amicus curiae briefs on copyright matters in the U.S. Supreme Court and a number of Circuits, on behalf of organizations including the AIPLA, the Motion Picture Association of America, the New York City Bar Association, and the Recording Industry Association of America. Mr. Clarida speaks and writes frequently on copyright issues, is the author of the treatise Copyright Law Deskbook (BNA 2009), and the principal author of the annual review of copyright decisions published each year by the Journal of the Copyright Society of the USA.Jacqueline C. Charlesworth is of counsel in the litigation department in the New York office of Morrison & Foerster LLP. Ms. Charlesworth's practice focuses on copyright law in the digital environment. She represents media, entertainment, and other clients in litigation, legislative, regulatory, and transactional matters. In addition to handling infringement matters, she has negotiated industry-wide licensing agreements to facilitate the development of online music services. She advises on copyright-related legislation and appears in proceedings before theU.S. Copyright Office.Ben Sheffner is a copyright/First Amendment/media/entertainment attorney and former journalist. Currently senior counsel, Legal Affairs in the NBC Universal Television Group, Mr. Sheffner has also worked as senior counsel, Content Protection Litigation at Twentieth Century Fox, as litigation counsel in the NBC Universal Television Group, and as an associate in the Century City office of O'Melveny & Myers LLP. From July-November 2008, Mr. Sheffner served as special counsel on Senator John McCain's presidential campaign where, among other responsibilities, he handled the campaign's copyright, trademark, and other intellectual property issues. Mr. Sheffner blogs at, which was recently named as one of the top 100 legal blogs by the American Bar Association, and writes a regular column on legal issues in the music industry for the [...]

Third Thomas-Rasset verdict: $1.5 million


The third time was not the charm for Jammie Thomas-Rasset.

The jury in the third copyright trial of the Brainerd, Minnesota woman has just returned a verdict of $1.5 million in statutory damages, or $62,500 for each of the 24 songs that she downloaded and "shared" over the KaZaA peer-to-peer network.

The award is significantly higher than the $222,000 award in her first trial (which was thrown out when the judge determined the jury instructions to be flawed), and a bit lower than the $1.92 million award in the second, which was reduced by the judge to $54,000 under the common-law doctrine of remittitur. After the second trial, Thomas-Rasset -- who denied downloading any music over peer-to-peer networks -- rejected a settlement offer of $25,000 from the record label plaintiffs, who said they would donate the amount to a music-related charity.

The RIAA said in a statement after the verdict:
We are again thankful to the jury for its service in this matter and that they recognized the severity of the defendant's misconduct. Now with three jury decisions behind us along with a clear affirmation of Ms. Thomas-Rasset’s willful liability, it is our hope that she finally accepts responsibility for her actions.
This is far from the end of the road in this case. Thomas-Rasset is expected to challenge the size of the award again, and the judge has already determined that $54,000 is the maximum acceptable size for an award given the evidence in the case.

I'll update as more information becomes available.
Jammie Thomas-Rasset Verdict (object) (embed)

Labels file First Circuit brief in Joel Tenenbaum case; ex-SG Paul Clement joins team


The record label plaintiffs filed their appellate brief in the First Circuit this week, seeking to reinstate the $675,000 copyright infringement award against Joel Tenenbaum that the district court held was unconstitutionally excessive and reduced to $67,500.

Readers of this blog are likely already familiar with the arguments over whether awards of copyright statutory damages are subject to review under the Supreme Court's punitive damages cases, including BMW v. Gore. I thought this brief did a particularly effective job at explaining why Gore and its progeny are inapplicable to statutory damages awards, where Congress has clearly established the permissible damages range, and thus the jury is not left without the "guideposts" that the court set forth in Gore, where no statute cabined the jury's discretion. And the brief highlights the flaws in the district court's own damages analysis, including its failure to take into account the evidence that Tenenbaum distributed (uploaded) songs to countless others in addition to downloading them. Of note, the labels' appellate team now includes former US Solicitor General Paul Clement, now a partner at King & Spalding.

Tenenbaum's defense team has also indicated that it will appeal, arguing that even the reduced award is unconstitutionally excessive.
Record Labels' appellate brief in Sony v. Tenenbaum (object) (embed)

Nesson seeks to join Thomas-Rasset trial fray


The third trial of Jammie Thomas-Rasset may have just gotten a lot more interesting:
Nesson motion for pro hac vice (object) (embed)

Trial is set to begin Tuesday, Nov. 2, and will concern only damages.

(Headline changed. Nesson sought to represent Harvard's Berkman Center, not to formally join Thomas-Rasset's defense.)

St. John's Law School synmposium explores music downloading cases


Those readers in the New York area may be interested in attending a symposium this Friday, Oct. 29 at St. John's University School of Law in Queens about the record labels' litigation against individual peer-to-peer infringers. The panel looks a bit heavy on the "anti" side, but it should be an interesting event nonetheless:Reaching Acc[h]ord: Resolving Disputes Over Music DownloadingOctober 29, 2010 9:00 AM - 2:00 PMLaw School | Belson Moot Court Room | 2nd FloorThe Hugh L. Carey Center for Dispute Resolution, together with the Law School's Dispute Resolution Societyand Entertainment, Arts and Sports Law Society, presents:Reaching Acc[h]ord: Resolving Disputes Over Music DownloadingCharles S. Nesson | Harvard Law School professor and counsel to Joel TenenbaumJoel Tennenbaum | Boston University student initially found liable for over $600,000 in damages for unauthorized music downloadingRay Beckerman | Respected entertainment attorney and blogger on the topic of music downloadingJake Walden | Independent recording artist. Cathy Constantino | Conflict Management System Design ExpertClick to view larger imageDateFriday, October 29, 2010Time9 a.m. - 2 p.m.LocationSchool of Law | Belson Moot Court Room | Second FloorFee$25 entry fee Free admission for law students with valid Law School IDRegistrationPlease register at by Wednesday, October 27, 2010More InformationMaureen MulliganAssociate Director of Special Events(718)[...]

Third Jammie Thomas-Rasset trial: Game on


The third trial of Jammie Thomas-Rasset for downloading and "sharing" songs over the Internet without permission from copyright holders will proceed as scheduled Nov. 2. Today Judge Michael Davis denied the defendant's motion for reconsideration of the court's earlier order reducing the verdict in the second trial on common-law remittitur grounds. Thomas-Rasset had sought to have the court void or reduce the $1.92 million jury award in the second trial on constitutional grounds, which would have permitted an immediate appeal to the Eighth Circuit. But in his brief order today, he concluded that his remittitur order "contain[]ed no manifest errors of law or fact." The third trial will focus only on damages; Thomas-Rasset's liability for willfully infringing 24 songs has already been established.
Order denying motion for reconsideration (object) (embed)

Labels, government oppose Thomas-Rasset's attempt to avoid third trial


The record label plaintiffs case have filed their brief opposing Jammie Thomas-Rasset 's last-minute attempt to avoid a third trial in the peer-to-peer copyright case. The labels argue that such a late motion for reconsideration -- the trial, which will involve damages only, is scheduled to start Nov. 2 -- is procedurally improper, and that there is no compelling reason to disturb the court's previous ruling reducing the previous jury's $1.92 million award on common-law remittitur (i.e., non-constitutional) grounds.

The Justice Department, which has intervened in the case in defense of the constitutionality of the statutory damages provision of the Copyright Act, also filed a brief opposing reconsideration, citing the long-standing doctrine that courts should avoid ruling on constitutional issues where possible.

With trial set to begin in less than two weeks, I expect a fairly quick ruling from Judge Michael Davis of the District of Minnesota. I'm told that at a hearing last week Judge Davis expressed serious interest in such a motion for reconsideration, but it's far from certain that he will grant it.

Labels oppose cert. in 'innocent infringer' case


The major record labels have filed their opposition to the defendant's cert. petition in Maverick Recordings v. Harper, arguing that the admitted peer-to-peer user is absolutely barred from asserting an "innocent infringer" defense under 17 U.S.C. § 504(c)(2) because they had properly affixed copyright notices to CDs containing the songs she infringed. See 17 U.S.C. § 402(d) ("If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504.").Here's the intro to the labels' brief:This case involves a straightforward application of 17 U.S.C. § 402(d). Petitioner has never disputed that Respondents placed proper copyright notices on the published sound recordings at issue and that Petitioner had access to these published works. Therefore, as the Fifth Circuit correctly determined, section 402(d) bars Petitioner from asserting a so-called “innocent infringement” defense as a matter of law.Petitioner’s primary argument for certiorari rests on the false premise that the circuit courts are divided on the legal standard for applying section 402(d). There is, however, no circuit split. The Second Circuit authority upon which Petitioner relies never even considered the application of section 402(d). In addition to the absence of any circuit split, this case provides an ill-suited vehicle for considering the legal standard for applying section 402(d). Petitioner’s argument that a lack of copyright notice on the specific digital recordings she infringed should defeat application of section 402(d) does not square with the plain language of the statute, ignores Petitioner’s admission that she had access to Respondents’ published works carrying the proper copyright notices, and was never raised in the lower courts. For all of these reasons, the Court should deny the Petition.The Fifth Circuit here and the Seventh Circuit in BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) came to the the same conclusion on this very point in very similar cases. And the label's brief explains why D.C. Comics, Inc. v. Mini Gift Shop, 912 F.2d 29 (2d Cir. 1990) -- which did not involve sound recordings, the Internet, or indeed 17 U.S.C. Sec. 402(d) -- is not in conflict with Harper and Gonzalez, the defendant's arguments to the contrary notwithstanding.See my previous posts on this case here and here.Plaintiffs' Opposition to petition for certiorari in Maverick Recordings v. Whitney Harper [...]

Judge in Thomas-Rasset case may scuttle third trial


The judge in the Jammie Thomas-Rasset case is considering canceling the third trial in this long-running litigation brought by the major record labels against an individual peer-to-peer user.The parties are preparing for a new trial starting Nov. 2, to focus only on damages, following the court's remittitur of the $1.92 million verdict handed down by a Minneapolis jury in 2009. But Judge Michael Davis indicated at a pre-trial hearing on Tuesday that he will give serious consideration to a defense request to modify his order so that it would instead rest on constitutional grounds. That would bring a degree of finality to the case, at least in the district court, and allow for an immediate appeal by one or both sides. I'm told that at the hearing, Judge Davis actually alluded several times to the movie Groundhog Day, referencing the scenario where he would repeatedly remit jury awards, only to have that remittitur refused by the plaintiffs, necessitating yet another trial, and ad infinitum.Today the defense filed its brief seeking such reconsideration. It cites to the order issued by Judge Nancy Gertner in the Joel Tenenbaum case, which reduced the jury's award from $675,000 to $67,500 on constitutional grounds. In his original order, Judge Davis declined to reach the constitutional issues, citing United States v. Allen, 406 F.3d 940, 946 (8th Cir. 2005) (“When we are confronted with several possible grounds for deciding a case, any of which would lead to the same result, we choose the narrowest ground in order to avoid unnecessary adjudication of constitutional issues.).” In her order in the Tenenbaum case, Judge Gertner concluded that avoiding the constitutional issues was impossible essentially because of the Groundhog Day problem.I'm told that the labels' plan to oppose Thomas-Rasset's motion for reconsideration; their response is due Wednesday, Oct. 20.Defendant's Motion for Reconsideration [...]

Grayson campaign ad apes 'Sopranos' opening; Henley v. DeVore redux?


The campaign of Rep. Alan Grayson (D-FL) has released a clever new ad -- one that closely mimics the opening of The Sopranos, only with Orlando rather than Northern New Jersey as the setting:


I don't think there's much of a copyright issue with the visuals in the Grayson spot; as far as I can tell, there's no copying of actual HBO footage, and I doubt HBO has a copyright in the idea of a montage of urban scenes from a driver's perspective. The much tougher issue for the Grayson campaign is the music, which appears to be a re-recording of the Sopranos theme (a song called "Woke Up This Morning" by British band Alabama 3 (aka A3)), with new lyrics that mock Grayson's opponent Daniel Webster (R). As to the music, the facts appear to be very similar to those in the Henley v. DeVore case, where the defendant also took a well known song and re-recorded it, substituting new lyrics attacking his political opponents. The court in the DeVore case soundly rejected the defendants' fair use argument, largely on the grounds that the campaign's use was satirical (using the work to poke fun at something else) rather than parodic (poking fun at the work itself). See Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994) (explaining parody/satire distinction).

Here's some background from the Orlando Sentinel.

Copyright battle in Ohio Gov. race over use of clip to expose 'steelworker' as actor


Here's a very interesting copyright battle going on in the Ohio governor's race. As described by EFF's Kurt Opsahl:A couple of days ago, Congressman John Kasich put out a commercial that featured a man dressed as a steelworker discussing Governor Ted Strickland’s record. It turns out that the steelworker depicted in the commercial wasn't an actual steelworker, but paid actor Chip Redden.In response, the Ohio Democratic Party promptly published a YouTube video capitalizing on this, illustrating its point with short clips from Redden's acting career. One of the clips came from a film by Arginate Studios, LLC, which then used the DMCA (Digital Millennium Copyright Act) to send a take down demand to YouTube. YouTube removed the video. Under the DMCA, the political video would be unavailable on YouTube for at least 10 days (a significant portion of the time remaining before the election), though the video remains available on Vimeo.Given the facts as I know them, I'm with EFF on this one. The Ohio Democratic Party's use of clip was strictly non-commercial: to make a political point about Kasich's ad. And the clips they used were very short -- just long enough to demonstrate that the "steelworker" really wasn't. Arginate's action will have the unfortunate effect of keeping the video off YouTube at the height of the campaign. YouTube can re-post the video at any time; yes, it would lose the DMCA safe harbor as to this video, but it doesn't need any safe harbor given that the Ohio Democratic Party's inclusion of the clip is almost certainly a non-infringing fair use. YouTube has taken such a step before; it should do so again.Update: as of the morning of October 8, the video has been restored to YouTube. I'll tryto find out whether Arginate withdrew its notice, or whether YouTube re-posted it on its own.Further update: Google Senior Copyright Counsel Fred von Lohmann confirmed to me that YouTube did re-post the video on its own.[...]

CDT releases report on campaign uses of copyrighted material


The Center for Democracy and Technology has released a new report documenting political campaigns' uses of third-party materials, and the copyright battles that sometimes ensue. Readers of this blog will be familiar with many of the incidents described in the report, but the author, CDT Policy Analyst Andrew McDiarmid, also unearths a few I was not aware of. While I might quibble a bit with the emphasis the report places on the notice-and-takedown provisions of the DMCA, I agree with its overall conclusion that too often content owners, particularly news organizations, have sought to enforce their copyrights out of concern for their reputational interests -- a form of damage that is really not cognizable in copyright law. Definitely read the whole thing.

NFL demands Feingold campaign remove clips from ad; Senator quickly complies


The National Football league today demanded that the campaign of Sen. Russ Feingold (D-WI) remove clips of actual NFL footage from a campaign ad. The Feingold campaign quickly complied.

Here's the original ad:
(object) (embed)

And the edited version:

(object) (embed)

Supreme Court requests response on 'innocent infringer' cert. petition


Good news for Whitney Harper and other opponents of the record labels' suits against individual peer-to-peer users: the Supreme Court has asked the record label plaintiffs to file a response to Harper's cert. petition that sought review of the Fifth Circuit's decision that precluded her from asserting the "innocent infringer" defense under 17 U.S.C. § 504(c)(2). While the Court's request is far from a guarantee that it will take the case, it only takes such action in a small percentage of cases, and it is an indication that the justices are at least intrigued by the issues presented and are seriously considering granting cert. As the Blog of Legal Times, which first reported the decision, stated:The Court's unusual action is a sign of the Court's interest in the case. A recent study indicated that the Court's request for a response significantly increases the chances the Court will ultimately grant review -- which could turn into a major contest for the music industry.My previous coverage is here.[...]

New paper examines distribution and 'making available'


Professor Peter Menell of Berkeley Law has published a new paper examining copyright's right of distribution, and the related debate about whether it encompasses a "making available" right. The debate is important in litigation against peer-to-peer users and facilitators; a conclusion that "making available" is not a violation of the distribution right torpedoed the verdict in the first Jammie Thomas-Rasset trial. Prof. Menell definitively concludes that the evidence, including the legislative history of the 1976 Copyright Act, "shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to 'publish' and 'vend' within the right to distribute, and rejects the position that Congress required proof of 'actual distribution' to prove violation of the distribution right."Here's the entire abstract:In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet AgePeter S. Menell University of California, Berkeley - School of LawSeptember 19, 2010Abstract: Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages. Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.[...]

Fox news and correspondent sue Senate candidate over use of news footage in ad


Fox News and its correspondent Chris Wallace have sued the campaign of Senate Candidate Robin Carnahan (D-MO) over her campaign's use of Fox footage in a TV ad attacking her opponent, Roy Blunt (R). As first reported by THR, Esq., the complaint, filed in the Western District of Missouri on Wednesday, alleges copyright infringement and two forms of violation of Wallace's right of publicity under Missouri law.The campaign ad has been removed from Carnahan's web site and YouTube, so unfortunately I can't independently evaluate it. (Update: here it is, at least for now.) But the complaint alleges that it was a "smear ad" that falsely implies that Fox and Wallace endorsed Carnahan's campaign. The complaint says that the 32-second ad uses "an essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary appropriated from" an interview Wallace conducted with Blunt in 2006. The complaint also seems to say that the Fox footage included in the Carnahan ad included only Wallace's questions -- but not Blunt's answers:The defendant’s conduct in stealing only certain footage from the [Fox] Interview is also false and misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations were not.The Kansas City Star described the ad as follows:“You have to show you’re the party of reform,” Wallace says to Blunt in the clip, as it’s replayed on the Carnahan ad. “But some question whether you are the man to do that.” The screen than flashes examples from Blunt’s political and congressional career, including his insertion of legislation in a Homeland Security bill that would have helped tobacco maker Philip Morris.Without having seen the ad myself, I'm not going to offer an opinion on the ultimate merits of the suit. But I do have a bit of skepticism about the copyright claim, for at least two reasons. First, the complaint repeatedly emphasizes the alleged reputational damage to Fox for use of the footage. Even assuming that the ad does falsely imply that Fox and/or Wallace are endorsing Democrat Carnahan (a dubious proposition, it seems to me), reputational damage is just not a cognizable copyright interest. And second, the complaint asserts that the campaign's use of the Fox footage "allows Defendant to profit commercially without paying the traditional price." But that statement appears to contradict the thrust of the complaint, which is that Fox would never license such footage to a campaign, because it would damage its reputation. In other words, there is no "price" here, "traditional" or otherwise. Moreover, courts have rejected the argument that campaign uses of third-party material are "commercial" simply because they are used to solicit contributions. See American Family Life Insurance Co. v. Hagan, 266 F. Supp. 2d 682, 697 (N.D. Ohio 2002) (use of trademark in a political campaign ad was “properly classified not as a commercial transaction at all, but completely noncommercial, political speech”); MasterCard International Inc. v. Nader 2000 Primary Committee, Inc., 2004 WL 434404 (S.D.N.Y. Mar. 8, 2004) (even if a candidate’s ad resulted in increased contributions, the ad would still not be “commercial;” “If so . . . all political campaign speech would also be ‘commercial speech’ since all political candidates collect contributions”).As for the right of publicity claims, I am not familiar enough w[...]