Judge Rakoff

[Engel Nyst]

I've said in the past that it would be interesting to see what positions has judge Rakoff taken in other cases. Since then, Getty has well availed itself of a past case of his, in its answer to Highsmith. Might as well look ourselves too.

Judge Rakoff is the judge in Highsmith v Getty. An article about him:

http://www.abajournal.com/magazine/article/judge_jed_rakoffs_stance_on_the_sec_deals_draws_fire_praiseand_change

Meyer v Kalanick and Uber

I knew this one, just didn't realize it was the same judge. It's a recent decision he made, to the surprise of a number of commentators (it seems damn right to me!): he held unenforceable the online contract between Uber and a customer, Meyer, because customers didn't know well enough what the heck is it that they're "agreeing" with, merely "by registering":

http://blogs.reuters.com/alison-frankel/2016/08/01/judge-rakoffs-soapbox-on-uber-arbitration-and-fair-play/

Since the late 18th century, the constitution of the United States and the constitutions or laws of the several states have guaranteed U.S. citizens the right to a jury trial,” he wrote. “This most precious and fundamental right can be waived only if the waiver is knowing and voluntary, with the courts ‘indulging every reasonable presumption against waiver.’ But in the world of the Internet, ordinary consumers are deemed to have regularly waived this right, and, indeed, to have given up their access to the courts altogether, because they supposedly agreed to lengthy ‘terms and conditions’ that they had no realistic power to negotiate or contest and often were not even aware of.

Full decision here:
https://scholar.google.se/scholar_case?case=13002923224554771362

[Engel Nyst]

In the same case, he had to deal with shady practices from people at Uber, who hired some private investigator to uncover something, some "derogatory" information about Meyer, and his counsel. The investigator wasn't licensed; and apparently was recording calls interstate (with people in states that disallow recording without knowledge), and was lying to people who knew Meyer.

Judge decides to agree to all relief that Meyer requested against Uber on this episode. It wasn't much, even; just to bloody stop, not use the results of this unlawful "investigation" of theirs in the lawsuit, and pay some money for fees and stuff.

From the decision:

litigation is a truth-seeking exercise in which counsel, although acting as zealous advocates for their clients, are required to play by the rules

While pleased that the parties have resolved the last prong of plaintiff's requested relief, the Court cannot help but be troubled by this whole dismal incident. Potential plaintiffs and their counsel need to know that they can sue companies they perceive to be violating the law without having lies told to their friends and colleagues so that their litigation adversaries can identify "derogatories." Further, the processes of justice before the Court require parties to conduct themselves in an ethical and responsible manner, and the conduct here fell far short of that standard.

[Engel Nyst]

Judge Rakoff seems a specialist on fraud, and he is one of the two authors of a treaty on RICO:
RICO: Civil and Criminal Law and Strategy

I parsed some of it via Google Books. Impressive in detail, and careful to all RICO cases and interpretations of the courts on every bit.

I couldn't figure out if the questions I had on Getty's practices could be, erm, answered by this treaty...

[Engel Nyst]

Famous case:
UMG Recordings v. MP3.com

The case concerned UMG suing mp3 service, for its internet offering of a space for users to enjoy their purchased songs, but it did so by first copying UMG's CDs, lots of them, on its servers. After that, mp3.com made sure that it checked whether the user had an original CD before giving them access to play the music, but that wasn't enough because the first actions were obviously making unauthorized reproductions of copyrighted works.
mp3.com claimed fair use and failed. Decision is a clear read.

A little interesting aspect in that case, IMO, was that when damages were discussed, Rakoff took the unexpected route to let the copyright holder sue for statutory damages of only the CDs, not the individual songs. In other words, one amount per compilation, not per "work".

From the order establishing this:

In their instant motion,[...] plaintiffs argue that the relevant "work" unit for purposes of computing statutory damages is each individual, copyrighted song on each such CD, as opposed to each copyrighted CD as a whole. This argument immediately encounters the objection that the very subsection of the Copyright Act that authorizes the award of statutory damages, § 504(c)(1), expressly states that: "For the purposes of this subsection, all parts of a compilation or derivative work constitute one work." As stated in the applicable House Report, section 225, 504(c)(1) "makes clear ... that, although they are regarded as independent works for other purposes, `all the parts of a compilation or derivative work constitute one work'" for the purposes of determining an award of statutory damages.

UMG tried another argument: that individual songs have independent economical value, but didn't convince the court.

it is hard to see the appropriateness of an "independent economic value" test to statutory damages — as opposed to actual damages, for which every copyright holder remains free to sue on a "per-song" rather than "per-CD" basis. If such a test were applied, the result would be to make a total mockery of Congress' express mandate that all parts of a compilation must be treated as a single "work" for purposes of computing statutory damages, since, as the House Report expressly recognizes, the copyrighted parts of a compilation will often constitute "independent works for other purposes."

[Engel Nyst]

In a later case, similar, another plaintiff against the same mp3.com, the issue of statutory damages per compilation, not per work, appeared again. This time, there weren't the same authors/copyright holders, for the composition and for the sound recording.
The court permits them both to recover statutory damages, though again, per compilation, as registered. Not per song.

From the order in Teevee Toons v MP3.com:

the repeated use of the singular "copyright owner" in 17 U.S.C. § 504(c) makes clear that the mandate to consider "all the parts of a ... derivative work [as] one work" assumed a single owner of all parts of the derivative work, and the legislative history, while somewhat obscure, at least confirms that Congress simply meant to preclude an author from recovering multiple statutory damages for infringements of several different versions of a single work. [...] It follows that where (as here alleged) the plaintiffs owning the copyrights on the musical compositions are separate from the plaintiffs owning the copyrights on the sound recordings, each may recover statutory damages, though each is limited to a single recovery per CD.

[Engel Nyst]

Another case in the same series: Country Road Music v. MP3.com.

In this one, mp3.com claimed that maybe it had some implied license to reproduce the works, because it had licenses for public performance, from collective rights organizations, so somehow it also got the right to reproduce just once works in order to later performed them. The argument doesn't go down well, as you might expect. Those organizations couldn't and didn't purport to give mp3.com reproduction rights; one even disclaimed it explicitly.

defendant's argument is wholly without merit so far as the issue of infringement is concerned. "Performance" and "reproduction" are clearly and unambiguously separate rights under the Copyright Act of 1976, see 17 U.S.C.A. § 106(1). Here, the performing rights licenses themselves, as their name implies, explicitly authorize public performance only, do not purport to grant a reproduction right in musical compositions, and, in at least one case, expressly disclaim such a grant. Moreover, the performing rights societies themselves do not, and do not purport to have, the authority to grant such a right.

[Engel Nyst]

A failed RICO claim: here the plaintiffs sued initially some corporation and an individual, which both went bankrupt. So they changed their complaint to try to allege a RICO claim against everyone else, like employees.

Didn't work. Reason was the lack of an allegation of  "racketeering activity" committed personally by any one of the defendants. (some role or involvement doesn't suffice)

The decision makes for some fun reading though.

Undeterred, the Rosenhecks, on Valentine's Day, 1995, filed a modest 73-page complaint against, seemingly, every person and entity that had a connection to Reiber Sr. or Advance Payment Corp. — ranging from "bookkeeper" William J. Reiber, Jr. to "secretary" Karen Schaefer. Inevitably, the Complaint alleged as the sole basis for federal jurisdiction putative violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.

[...]

Eschewing the temptation to re-read War and Peace, the Court has instead spent an equivalent amount of time reading and re-reading plaintiffs' Complaint, seeking to draw every reasonable inference in plaintiffs' favor before concluding that there has been a failure to state a RICO claim.

[...]

The only even arguably close case involves Ms. Schaefer, who is alleged to have mailed specific letters from Advance Payment to the Rosenhecks and others, "knowing" that the letters contained false representations that non-existent notes, mortgages and assignments did in fact exist. But the Complaint fails to allege any particulars from which a reasonable person could deduce that Ms. Schaefer had such actual knowledge of falsity, let alone factual circumstances giving rise to a strong inference that she had the requisite fraudulent intent.

Rosenheck, v Rieber Jr., et al.

[Engel Nyst]

Famous case: Motorola Credit v Uzan

This is a "huge fraud" within a case that was a "host of unusual legal questions". I can't even start to describe it. From one of opinions in it:

No legal thicket ... can hide the fact that all the credible evidence before the Court proves that the defendants—in particular, the members of the Uzan family—have perpetrated a huge fraud. Under the guise of obtaining financing for a Turkish telecommunications company, the Uzans have siphoned more than a billion dollars of plaintiffs' money into their own pockets and into the coffers of other entities they control. Having fraudulently induced the loans, they have sought to advance and conceal their scheme through an almost endless series of lies, threats, and chicanery, including, among much else, filing false criminal charges against high level American and Finnish executives, grossly diluting and weakening the collateral for the loans, and repeatedly disobeying the orders of this Court. Part II of this Opinion and Order details the overwhelming evidence of this misconduct and the legal consequences that flow therefrom, including, among much else, an award of damages in excess of $4 billion and an order for the arrest and confinement of the individual defendants should they be brought within the jurisdiction of the Court.

(Yes damages 4+ billion)
The case was a civil RICO case, lasting about a decade.

http://law.justia.com/cases/federal/district-courts/FSupp2/274/481/2493622/

[Engel Nyst]

Dealing with a lawyer previously disbarred by the Supreme Court, Rakoff together with a disciplinary commission at the local level, writes their own decision to remove him from practising law in SD NY court:

The petitions Mr. Moore filed with the Supreme Court did not, however, address the merits of either action. Instead, Mr. Moore represented in his petitions that the Questions Presented in both cases that warranted review by the Supreme Court were (in the exact words and punctuation appearing in Mr. Moore's petitions):

1. Whether "COSS"[1] can be declared a corrupt enterprise under "Rico."
2. Whether, Chief Injustice, Mr. Ralph Winter can be brought to trial for racketeering, under "Rico" 18. U.S.C.1961-1968.
3. Whether there is a better resolution for the people than to shut down "COSS."

The petitions then went on, in conclusory language, to accuse the Court of Appeals, of having a "corrupt nature," of being "a strong supporter of fraud and recketeers [sic ]," and of constituting "a cancer in the legal system," concluding that "no terrorist, criminal, individual or otherwise caused greater harm and miscarriage of justice to the people than this den of racketeers. ..." Similar accusations were made against "chief injustice Ralph Winter" and his fellow "injustices."

[footnote]
[1] "COSS" was Mr. Moore's obscure acronym for the Court of Appeals of the Second Circuit.

You might find it hard to believe, but the commission tries to excuse the lawyer considering whether, by any chance in hell, First Amendment might explain his behavior. Even though he doesn't make any argument about it.

In this case, however, we are fully satisfied not only that disbarment of Mr. Moore is not a grave injustice, but also that such action is necessary to protect this Court's legal process: for upon review Mr. Moore's actions demonstrate his incompetence to practice law on behalf of his clients.

Mr. Moore's unsupported and contemptuous attack on the integrity of the Court of Appeals that constitutes the sole ground of his petitions for certiorari cannot possibly have advanced the cause of his clients, and indeed could only have harmed them by directing the Supreme Court away from whatever merit the clients' cases might have had. Indeed, as noted, the two petitions completely ignore any legal and factual issues presented by the Spencer and Brown litigations. Aside from the unsupported accusations of corruption on the part of the Court of Appeals and its judges, the petitions consist solely of a rendition of Mr. Moore's dissatisfaction with Second Circuit decisions in other matters, which he decries as examples of the alleged corruptions of the Court of Appeals, its members, and, indeed, its entire staff. By indulging in vituperative invective and ranting about his own grievances against the Court of Appeals, rather than making any coherent legal argument about the merits of his clients' cases, Mr. Moore betrayed his clients' trust and failed to represent them competently.

Whole decision

[Engel Nyst]

Dealing with a "recusal request" in a years-long case, where the party who asked his recusal suggested that there was a problem with him going to a conference where a speaker was at a company involved:

As for the fact that one of the speakers at the conference was a former chairman of Texaco, it suffices simply to reiterate that neither he nor any of the other speakers or participants at the conference addressed any aspect of the merits of these previously-dismissed cases, either formally or in informal conversation with the undersigned. Likewise, while the conference canvassed various environmental issues, none directly related to any issue raised in the instant cases.
Nothing in judicial ethics requires a judge to be a hermit, or to closet himself from ideas.

[Engel Nyst]

Missed very interesting parts from Country Music Road v MP3.com. The decision also contains other aspects, apart from the reproduction vs public performance licenses noted above, like:

(1) "Fair market price", not what licensor could ask

Rakoff rejected the expert evidence for Country Music, who had a report about actual damages. The report presented calculations to determine how much would have been a license from Country Music Road to MP3.com. The judge rejected the report, because it made unreasonable assumptions, like how much was an *exclusive* license for 1 year, when MP3.com would have needed only a nonexclusive license for a few months.

Even more, it clear says that it's *not* what Country Music would have wanted, it's what "the market" is, that matters.

In determining the license fee lost to the copyright owner because of the infringer's actions, "the question is not what the owner would have charged," just as it is not relevant that the infringer might not have been willing to pay. Davis, 246 F.3d at 166, 172. The inquiry is an objective one into the "fair market value," the result of "negotiation between a willing buyer and a willing seller," id. at 172, for a license for "the use the infringer made," not "the highest use for which plaintiff might license,"

Therefore, instead of asking "what MP3.com would have had to pay to the [p]laintiffs as a license fee in order to obtain permission to use their compositions on the My.MP3.com service," Massarsky Report at 4, the proper inquiry was what price "a willing buyer and a willing seller" would have agreed on for the actual use made by the defendant, in this case, a four-month, non-exclusive license to stream previously released musical compositions over the Internet to users who could prove ownership of copies of those compositions.

[Engel Nyst]

(2) Statutory damages per-CD, not per song

plaintiffs raise, apparently for purposes of any appeal, their disagreement with this Court's repeated prior rulings that statutory damages should be calculated on a "per-CD," and not a "per-composition," basis. See TVT, 134 F.Supp.2d at 548; UMG Recordings, Inc. v. MP3.com, Inc., 109 F.Supp.2d 223 (S.D.N.Y.2000). But the Copyright Act unambiguously provides that a "compilation," although composed of "separate and independent works," 17 U.S.C.A. § 101 (West Supp.2003), "constitues one work" for purposes of calculating statutory damages, 17 U.S.C.A. § 504(c)(1) (West Supp. 2003). Thus, each CD that defendant copied to its servers constitutes one work and the basis for one statutory damage award, even though it might contain multiple copyrighted musical compositions.

Btw, I thought it's per work, meaning song in this case. I find this interesting, though I wonder if it's still good law. The mp3 cases series was in 2000/2001.
(It was also a somewhat special circumstance, because the plaintiff in the first case argued all the time about "CDs", eg look how many CDs they copied,, and when time came for damages suddenly it wasn't about CDs; plus, MP3 service made their initial copy from any CDs from many companies; this litigation drove MP3 out of business anyway)

Either way, my reason in this topic was more to get acquainted with how judge Rakoff thinks. Keep in mind that they're fragments from cases no matter how old.

[Engel Nyst]

CORBIS v UGO NETWORKS

Rakoff throws out Corbis suit for images that they filed at the Copyright Office, but registration is only pending.
(this is another one I thought it'll be the other way around Registration is tricky.)

[N]o action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.

Reading carefully, the text says you can sue if the Office approved application, or refused it. It doesn't say when it's pending.

The combination of sections 410 and 411 thus make plain that the federal district courts do not have jurisdiction over a claim for federal copyright infringement until the Copyright Office has either approved or refused the pending application for registration.

[Engel Nyst]

White v West Publishing

This is a lawyer suing West for copyright infringement for copying their briefs into its legal database. (It's West as in westlaw service). Rakoff finds it's a fair use.

The briefs were filed publicly into a former case, so they were available in Pacer. They weren't unpublished, which might have mattered.

Judge makes short work of the claim, it's easy fair use particularly because it's transformative use (they're not to provide legal service to a client, but part of a database for research, and stuff like adding keywords, jurisdiction, editing, "adds something new, with a further purpose or different character" as noted by a Supreme Court decision).

[Robert Krausankas (BuddhaPi)]

One has to appreciate your "gung ho-ism"!