Recent Intellectual Property Legal Issues

[Matthew Chan]

The only emails that get sent out are the auto-notification emails regarding the discussion forum and the occasional one when people subscribe to our email database.  Thanks for letting me know.

kelvin Wrote:
-------------------------------------------------------
>
> By the way, Matthew, you should know that someone
> / quite a few people flagged emails from your
> (this) domain as spam and it's blacklisted with
> Google Mail accounts (including Google Apps, etc).
> I unflagged it, but any mails from this website
> still somehow goes into there.

[Helpi]

Seasons Greetings.

Is the person in charge of updating this thread OK ?

Maverick v. Harper was overturned by the appellate court ten months ago.  And the Supreme Court subsequently declined to hear the case.

ABA case summary (http://new.abanet.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=108):

"In an opinion by Judge Clement, the U.S. Court of Appeals for the Fifth Circuit found in favor of the record companies, both by affirming Harper’s guilt and by adjusting her penalty from $200 to $750 for each of the 37 audio files in question.  Harper’s liability to the companies therefore totaled $27,750.  The Fifth Circuit explained that it did not matter whether Harper knew her conduct was illegal.  As long as the record companies provided notice that unauthorized reproduction was a copyright infringement, the subjective state of mind of the defendant does not matter.  The Fifth Circuit found that warning labels on the compact discs from which Harper’s files were originally downloaded satisfied this notice requirement.  Whether Harper ever saw these compact discs was irrelevant."

Alito dissent (he wanted to hear the case): http://tinyurl.com/34hxvvp

Record companies (who won) and the infringer (who lost) arguments to the Surpreme Court to not hear and to hear the case, respectively (sorry, you may have to google if these URLs don't post properly.).

http://www.scribd.com/doc/32060955/Harper-Petition-for-certiorari

http://www.scribd.com/doc/39440193/Plaintiffs-Opposition-to-petition-for-certiorari-in-Maverick-Recordings-v-Whitney-Harper

Oscar, not only is Maverick not helpful any longer it suggests the following question:

Whether 401(d) precludes the innocent infringer defense when a stock image company places copyright notices on the copies it publishes at its freely accessible web site even if the copies infringed by the defendant had no copyright notice on them.

[Helpi]

"We should all keep an eye on the case anyway to see if the jury award in Tenebaum [sic] will be upheld."  

Old news as well.  

3x statutory min ($750) = $2250 per infringed work is the maximum award constitutionally allowed given the facts (non-commercial file sharing), according to the Judge.  The jury awarded $22,500 per.  

(Keep in mind the case involved non-commercial infringement.)

“Weighing all of these considerations,” the judge wrote, “I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive. This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis’ characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply “unprecedented and oppressive.” Capitol Records Inc. v. Thomas, 579 F. Supp. 2d 1210, 1228 (D. Minn. 2008). It cannot withstand scrutiny under the Due Process Clause.”

“For the reasons I discuss below, I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case.”

[Lettered]

Hi Helpi,

Thanks for the update on Maverick.

More of my uneducated laymen's thoughts:

Of course, the dates of Oscar's posts you're refering to are very old and, I believe, posted before the decisions you cite.  However, regarding Maverick, there is still good news, I think in spite of the appeal.  The statutory damages were held at the absolute minimum (considering the innocent infringer defence was disallowed for a technicality) of $750 per infringement.  This combined with the fact that infringment of multiple items in an image compilation are currently held, I believe, as a single infringement shows a very favorable position (compared to the grim picture painted by some, I think) for many letter recipients, I think.  And remember that the images must have been registered before infringent before statutory damages can be awarded at all.

Personally, I think these companies want us to obsess and worry over the fine points of the law to the point of painting a grim picture in our own minds till we give in and just pay whatever they ask.  I, for one, won't do that.  For sure, I think that we all need to have a look at the specifics of our own cases and get good qualified legal advice specific to our own cases from a lawyer.  

 

Helpi Wrote:
-------------------------------------------------------
> Seasons Greetings.
>
> Is the person in charge of updating this thread OK
> ?
>
> Maverick v. Harper was overturned by the appellate
> court ten months ago.  And the Supreme Court
> subsequently declined to hear the case.
>
> ABA case summary
> (http://new.abanet.org/SCFJI/Lists/New%20Case%20Su
> mmaries/DispForm.aspx?ID=108):
>
> "In an opinion by Judge Clement, the U.S. Court of
> Appeals for the Fifth Circuit found in favor of
> the record companies, both by affirming Harper’s
> guilt and by adjusting her penalty from $200 to
> $750 for each of the 37 audio files in question.
> Harper’s liability to the companies therefore
> totaled $27,750.  The Fifth Circuit explained that
> it did not matter whether Harper knew her conduct
> was illegal.  As long as the record companies
> provided notice that unauthorized reproduction was
> a copyright infringement, the subjective state of
> mind of the defendant does not matter.  The Fifth
> Circuit found that warning labels on the compact
> discs from which Harper’s files were originally
> downloaded satisfied this notice requirement.
> Whether Harper ever saw these compact discs was
> irrelevant."
>
> Alito dissent (he wanted to hear the case):
> http://tinyurl.com/34hxvvp
>
> Record companies (who won) and the infringer (who
> lost) arguments to the Surpreme Court to not hear
> and to hear the case, respectively (sorry, you may
> have to google if these URLs don't post
> properly.).
>
> http://www.scribd.com/doc/32060955/Harper-Petition
> -for-certiorari
>
> http://www.scribd.com/doc/39440193/Plaintiffs-Oppo
> sition-to-petition-for-certiorari-in-Maverick-Reco
> rdings-v-Whitney-Harper
>
> Oscar, not only is Maverick not helpful any longer
> it suggests the following question:
>
> Whether 401(d) precludes the innocent infringer
> defense when a stock image company places
> copyright notices on the copies it publishes at
> its freely accessible web site even if the copies
> infringed by the defendant had no copyright notice
> on them.

[Lettered]

Helpi,

Thanks for the update on Tenenbaum.  Even though the case might not be applicable to Getty cases, it was still good to see that some common sense prevailed.


Helpi Wrote:
-------------------------------------------------------
> "We should all keep an eye on the case anyway to
> see if the jury award in Tenebaum  will be
> upheld."  
>
> Old news as well.  
>
> 3x statutory min ($750) = $2250 per infringed work
> is the maximum award constitutionally allowed
> given the facts (non-commercial file sharing),
> according to the Judge.  The jury awarded $22,500
> per.  
>
> (Keep in mind the case involved non-commercial
> infringement.)
>
> “Weighing all of these considerations,” the
> judge wrote, “I conclude that the jury’s award
> of $675,000 in statutory damages for Tenenbaum’s
> infringement of thirty copyrighted works is
> unconstitutionally excessive. This award is far
> greater than necessary to serve the government’s
> legitimate interests in compensating copyright
> owners and deterring infringement. In fact, it
> bears no meaningful relationship to these
> objectives. To borrow Chief Judge Michael J.
> Davis’ characterization of a smaller statutory
> damages award in an analogous file-sharing case,
> the award here is simply “unprecedented and
> oppressive.” Capitol Records Inc. v. Thomas, 579
> F. Supp. 2d 1210, 1228 (D. Minn. 2008). It cannot
> withstand scrutiny under the Due Process
> Clause.”
>
> “For the reasons I discuss below, I reduce the
> jury’s award to $2,250 per infringed work, three
> times the statutory minimum, for a total award of
> $67,500. Significantly, this amount is more than I
> might have awarded in my independent judgment. But
> the task of determining the appropriate damages
> award in this case fell to the jury, not the
> Court. I have merely reduced the award to the
> greatest amount that the Constitution will permit
> given the facts of this case.”

[Oscar Michelen]

Helpi:

Thank you for updating those two cases, I did not get the opportunity and my two older posts stayed on. I think copyright notice on the images might certainly help the image companies combat an innocent infringement defense but I do not think you can compare cases involving music as even the below average layman has to know that songs are copyrighted and are not free to use whenever one sees fit.  That is not the case with a thumbnail image that appears on a template sight with no copyright notice.  Also, the image companies catalogs are very hard to view completely so it is not easy to check a photo for copyright information.  So 401(d) I think can be argued against in the digital image arena.  Remember that most of the infringers did not remove the image from Getty's site.  They got it from some other source

[Helpi]

Lettered, most people probably ignore it unless and until Getty files a lawsuit, right ? And from my reading around here they don't seem to sue much.

I don't think people should be cutting checks to anyone without understanding where they stand. I also recognize the reality that lawyers cost money. And that any real defense of a copyright action (I don't mean a lawyer for a nominal amount sending a letter or two to try to end the matter) will quickly eat up any settlement "savings".  The Getty cost-benefit dilemma goes both ways. In addition, for Getty it's just business. When it's you it's personal which is another reason, ideally, you want to dump it on a lawyer.

On Maverick :

"The statutory damages were held at the absolute minimum (considering the innocent infringer defence was disallowed for a technicality) of $750 per infringement. "

The statutory minimum was the amount the plaintiff requested. So plaintiff got exactly what plaintiff wanted (and with the favorable precedent, more):

Plaintiff asked the Judge to enter an award at min statutory damages of $750 per infringement based on the argument that there were no triable facts regarding the infringement  (the liability question) and the plaintiffs only wanted the statutory minimum so there was nothing for a Jury to consider as far as damages (the damages question).

The defendant/infringer argued there was a question for the Jury of whether she was an "innocent infringer" so the court can't award $750 because if the Jury found her to be an "innocent infringer" they had the option of awarding as little as $200/per.  This is where it went sour for the defendant.

The plaintiff said, fine, just award $200 per but if defendant appeals the issue of liability then I retain the right to talk about whether she can in fact argue "innocent infringement."  So at that point defendant could have paid $200/per and be done.   Defendant/Infringer did in fact appeal and raised a number of issues including challenging liabiility on a number of the infringed musical works.  The court rejected the liability arguments.  The plaintiffs then raised the issue of whether she could present an "innocent infringer" defense to the Jury.  The appeals court overturned the trial court on this issue finding that as a matter of law  she could not raise the issue.  So they upped the award to $750.

So plaintiffs got what they asked for as well as favorable precedent interpreting section 402(d) of the copyright act (which precludes the "innocent infringer" defense from being raised).  Not a "technicality" as you call it. That would be more akin to a one-off ruling; neither here nor there as far as future cases. Believe me the next music download case to argue "innocent infringer" and the other side will argue that the "innocent infringer" defense is precluded because the CDs have a copyright notice and the downloader had "access" to the CDs.

If there is any positive for music infringers I would say it is that infringer in this case did not contest that she had "access" to the physical CDs which contained the copyright notice.  

The positive in the photo realm ?  It's a digital music case. The "published" copies of the work to which you have to have access and that need to contain the copyright notice are on physical CDs. Arguably you can track down the applicable authorized copy -- the CD.  How do you track down the authorized copy of the photo ?

"This combined with the fact that infringment of multiple items in an image compilation are currently held, I believe, as a single infringement shows a very favorable position (compared to the grim picture painted by some, I think) for many letter recipients, I think. "

Not an issue in the Maverick case.

"And remember that the images must have been registered before infringent before statutory damages can be awarded at all."

True. Also not an issue in Maverick.

[Helpi]

Oscar wrote: "...as even the below average layman has to know that songs are copyrighted and are not free to use whenever one sees fit.  That is not the case with a thumbnail image that appears on a template sight with no copyright notice. "

But the issue wasn't what she knew. It's whether she could even raise the "innocent infringer" defense at all. That was the fight. Pay $200/per or pay $750/per.

As for pointing at the template site with the thumbnails and no copyright notice, you're looking at the wrong copies (according to Maverick).  As plaintiff's  argued : "The statute’s plain language focuses on access to the “published” work, not on whether the copy of the work a defendant used to conduct her infringing activities bears the notice...The statute, however, expressly defines a “published” work as one that is “published in .....by authority of the copyright owner.”  The CDs are the relevant copies. The CDs have copyright notice.

So let's say I'm a photographer and I'm willing to put a copyright notice on my online work (making it ugly) because I want to preclude any innocent infringer arguments.  Someone copies my photos w/o permission and photoshops my copyright notice out and then offers it to others.  I find the photo online (more realistically, someone more sophisticated finds it for me).  I sue the "downstream" infringer. Infringer, of course, says innocent infringement. I point to the only authorized copies (the "published" copies) on my site as having the applicable copyright notice.  

I think it safe to say you will tell me I lose. Why?  

Because the infringed copies don't have notice  (Maverick argues against that) ?

Or because infringer didn't "have access" to the "published" copies ?

[Helpi]

"And remember that the images must have been registered before infringent before statutory damages can be awarded at all."

Lettered, I forgot to add to this comment.

It gets stated so many times on this board people may think what you said is the rule. It's not complete. The actual rule is prior to infringement for unpublished work. For published work you get a three month grace period. So someone can infringe you before you register but so long as you register within three months of your first publication you can get fees and statutory damages.  A lot of businesses would be unable to benefit from these remedies (and practically protect their work) without the grace period.

For example, there is currently a fairly well reported ongoing dispute where AFP and Getty, among others, are defendants in a photo infringement suit. AFP lifted photographers photos off TwitPic. The photographer didn't register until weeks later.  Photographer satisfies the three month rule as far as seeking statutory damages and fees.  The case is not going well for AFP/Getty on the underlying infringement issue either.  

Getty so aggressively fighting for copyright owners as plaintiff is putting forth some pretty silly arguments when the shoe is on the other foot.

[Lettered]

" Lettered, most people probably ignore it unless
 and until Getty files a lawsuit, right ? "

I'm not sure.  If you're talking about completely ignoring, I would probably disagree.  If you're talking about just not responding and not seeking legal advice from a lawyer, I'm not sure what percentage of letter recipients would fall into that category.


" . . . Not an issue in the Maverick case. . . "
" . . . True. Also not an issue in Maverick. . ."

Then wouldn't you agree that the issues you raised from Maverick probably aren't applicable to most Getty letter cases?  As I understand it, most Getty stock images are neither registered nor have copyright markings.

[Lettered]

" Lettered, I forgot to add to this comment.
 
 It gets stated so many times on this board people
 may think what you said is the rule. It's not
 complete. The actual rule is prior to infringement
 for unpublished work. For published work you get a
 three month grace period. So someone can infringe
 you before you register but so long as you
 register within three months of your first
 publication you can get fees and statutory
 damages.  A lot of businesses would be unable to
 benefit from these remedies (and practically
 protect their work) without the grace period."

Point taken.  So if someone recieves a Getty letter regarding an image published (published by Getty ... not the infringer) less than three months ago, Getty might still be able to get it registered in time.  I have to believe that this would be an exceedingly rare case, though.
 
 
" Getty so aggressively fighting for copyright
 owners as plaintiff is putting forth some pretty
 silly arguments when the shoe is on the other
 foot. "

Wouldn't it be funny if Getty actually ended up setting a precedent that went against them in their letter campaign?  lol

[Helpi]

It was speculation on my part as to the typical response.

"...wouldn't you agree that the issues you raised from Maverick probably aren't applicable to most Getty letter cases?"

I wouldn't want my attorney spending my money on novel 401(d) issues unless and until Getty tries to preclude my innocent infringer defense, assuming I was putting one out there. <

[Lettered]

Helpi Wrote:
-------------------------------------------------------
> It was speculation on my part as to the typical
> response.
>
> "...wouldn't you agree that the issues you raised
> from Maverick probably aren't applicable to most
> Getty letter cases?"
>
> I wouldn't want my attorney spending my money on
> novel 401(d) issues unless and until Getty tries
> to preclude my innocent infringer defense,
> assuming I was putting one out there. <


And, of course, if the image wasn't registered before infringment began (or within 3 months of when the image was originally published by the owner (as you pointed out)), an innocent infringer defence wouldn't even be necessary, right?

By the way, are you a lawyer/paralegal/etc ?

[Helpi]

Yes, probably rare.  

"(published by Getty ... not the infringer)"

Yes, by Getty. Incidentally, you can't have publication by an infringer.  Publication has its own meaning under the copyright act.  And it requires authorization of the copyright owner.  

"Wouldn't it be funny if Getty actually ended up setting a precedent that went against them in their letter campaign?"

Very different case I think. AFP/Getty actually sued the photographer for making noise about copyright infringement.  He sent a C&D letter and they responded by suing him for, among other things "antagonistic assertion of rights".  Which probably would go over big on this forum but made me laugh when I read it. In turn photographer counterclaimed for copyright infringement.  They put forth the defense that they have a license to use the photographers photos because of the language in the Twitter and/or TwitPic TOS.  Their argument is ridiculous.

[Oscar Michelen]

I agree