riaa – Attorney Evan Brown

June 23, 2010 Copyright

Court rejects RIAA’s arguments against 24 cent ringtone royalty rate

Recording Industry Ass’n of America, Inc. v. Librarian of Congress, — F.3d —, 2010 WL 2487842 (D.C. Cir. June 22, 2010)

Recorded music is usually subject to copyright protection in two ways — the musical composition (think sheet music and lyrics) is protected by one copyright, and the actual sound recording is protected by another copyright. In general, for someone other than the copyright owner to use a copyrighted work (e.g., to copy or distribute it), he or she must get a license from the copyright owner (setting aside exceptions such as fair use).

The compulsory license schema

But there’s a kind of zany exception to the general requirement of a negotiated license when it comes to reuse of a musical composition. Others seeking to make such further reuse can do so without obtaining an agreement with the owner of the copyright in the musical composition, provided that the reuser obtain and pay a fee for a “compulsory license.” The mechanics for such licensing system are set up in Section 115 of the Copyright Act (17 USC 115).

There is a Copyright Royalty Board (CRB) that the Library of Congress oversees. This three-member panel sets the fees due to copyright owners under the Section 115 compulsory license schema.

Ring-a-ling cha-ching

As you probably know, ringtones that sample popular songs are popular these days. (As a commuter on public transportation I can attest to what a scourge this is on our modern society.) Since they’re all the rage, they’re big business.

In 2009, after some complex hearings, the CRB set the rate for payment under a compulsory license at 24 cents per ringtone sold. The Recording Industry Association of American (RIAA) had argued that its copyright owners were entitled to a percentage of total revenue, not a flat “penny-rate.” Unhappy with the CRB’s determination, it appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The court affirmed the CRB’s penny-rate of 24 cents.

How the CRB was right

The CRB determined that a penny-rate was more in line with reimbursing copyright owners for the use of their works. In upholding the CRB’s determination on this point, the court observed that in other cases it had validated the CRB’s preference for a royalty system based on the number of copyrighted works sold — like the penny rate — as being more directly tied to the nature of the right being licensed than a percentage-of-revenue rate.

Moreover, the CRB had determined (and the court agreed) that a percentage revenue model did not make as much sense for the sale of individual copyrighted works as it would in the sale of media that is streamed or broadcast. Simply stated, it is relatively easy to measure how many copies of a ringtone are sold, and thus easy to calculate a penny-rate amount. But that is more difficult to accurately do in the case, for example, of satellite radio. Those difficulties were not present in this situation, and that militated against the adoption of a percentage rate.

Finally, the court agreed with the CRB’s disdain for the complexity of calculating a percentage of revenue licensing fee. A penny-rate structure was much simpler to handle than the “salient difficulties” presented by the RIAA’s percentage mode.

The court found nothing unreasonable about the CRB’s determination (i.e., that the the CRB’s determination was not arbitrary and capricious, and so it affirmed that determination.

Photo courtesy Flickr user totalAldo under this Creative Commons license.

June 18, 2009 Copyright, Cybersquatting, Litigation, Privacy

Record companies win $1.92 million in case against individual file sharer

There has only been one copyright infringement case filed against an individual accused of illegally sharing music files over the internet to actually go to trial. That’s the case of Capitol Records v. Jammie Thomas. In October 2007, a jury in the U.S. District Court for the District of Minnesota returned a verdict of $222,000 against Ms. Thomas. The court on its own motion vacated that judgment, and ordered a retrial. That retrial concluded on June 18, 2009, with a judgment of a whopping $1.92 million against Ms. Thomas.

Here is a growing collection of links on the topic:

April 17, 2009 Copyright

The Pirate Bay verdict is no big deal

The big news story of the day is the guilty verdict from a Swedish court against the four guys behind The Pirate Bay. The judge sentenced them to a year in prison for facilitating copyright infringement and also ordered them to pay millions of dollars. The righteous indignation flows like akvavit.

I cannot see any reason why anyone outside the reach of Sweden’s laws should be all that concerned about this case. Sure, it’s grand spectacle to see an act of civil disobedience deliver its agents to purported martyrdom. But as for any legal significance outside Sweden, there is none. And does it teach us anything about the underlying interests that gave rise to the dispute? No. We have known for a long time that there are some who believe copyright law is too restrictive, and that those interests are pitted against the corporate and pecuniary interests of the big media companies.

So if one is to treat as news the fact that the RIAA and other content owners sometimes overreach, or that zealous advocates for copyright reform believe in their cause, please send me some of that sweet oblivion.

February 13, 2009 Copyright, Litigation

RIAA’s need for discovery was not so urgent

Elektra Entertainment Group, Inc. v. Does 1-6, No. 08-444 (S.D. Ohio February 5, 2009)

The RIAA’s de-emphasis on lawsuits against individual file sharers may underlie the result in a recent case from a federal court in Ohio. The music industry plaintiffs had sought expedited discovery so they could learn which members in a household (either the mother or one of the children) was responsible for illegally trading files. Finding that the need for the discovery was not urgent, the court denied the record companies’ request.

Electra Entertainment and others sued one David Licata in 2007, accusing him of infringing the copyright in sound recordings back in 2005. Licata claimed he did not know who was responsible for trading the files (though AOL had identified Licata’s account as corresponding with the offending IP address). During discovery in that case, however, Licata identified the other members of his household.

Instead of suing one or more of these other members of the household, the recording industry plaintiffs filed another John Doe suit, leaving it to later to find out the identities of the particular individuals who were allegedly infringing. But instead of acting diligently to figure out who to go after, the record companies did nothing for about five months.

Last November, the court ordered the plaintiffs to show cause why the case should not be dismissed, since the defendants had not been served with process (after all, the record companies claimed they didn’t know who to sue). In response to that order, the plaintiffs sought leave under Fed. R. Civ. P. 26(d) to take expedited discovery. The court denied the motion, holding that there was not good cause shown to accelerate the normal discovery schedule.

The court looked to the long period of time — 152 days — that had passed from the suit being filed to the request for expedited discovery. That duration, coupled with the fact that the plaintiffs already knew the names of the other family members who were likely the proper defendants, undercut any argument that the need for discovery was urgent. Without such urgency (which usually exists when there is a risk that evidence will be destroyed or someone will be injured), there was no good cause to allow the depositions of the mother and children prior to the Fed. R. Civ. P. 26(f) conference.

[Hat tip to Ray Beckerman for alerting me to this decision.]

Photo courtesy Flickr user swanksalot under this Creative Commons license.

December 19, 2008 Copyright, Litigation

What could the RIAA’s switch in strategy mean?

The Wall Street Journal and others are reporting that the Recording Industry Association of America is adjusting its strategy for combating the massive infringement occasioned by the sharing of music files over the internet. Since 2003, that strategy has been to pursue copyright infringement cases against individual file sharers. The RIAA now says it will focus less on pursuing infringement litigation and more on working with internet service providers to shut down the accounts of individuals suspected of illegally trading files.

This is the third wave in the recording industry’s attack on digital piracy:

First wave: The labels went after the purveyors of the software used in file sharing. There are reported decisions involving Napster, Aimster and Kazaa, not to mention the U.S. Supreme Court decision in MGM v. Grokster.
Second wave: The thousands of lawsuits against individual file sharers. Though it’s said that the RIAA sued some 35,000 people, only one of those cases went through to verdict (the Jammie Thomas case). Most settled for a few thousand dollars.
Third wave: Rejection of the massive litigation model (announced today) and collaboration with ISPs to combat file sharing.

So what does this change in strategy tell us? Does it mean that the RIAA has given up and the file sharers have won? It’s hard to tell. But there may be some insight to be had into the broader picture of digital copyright enforcement. Here are some observations:

The ability to easily make innumerable perfect copies creates a problem for copyright holders that must be addressed at a systemic level (like at the ISP level). The suits against individuals are too much like whack-a-mole to have practical effect.
The question of whether merely making a copy available can be infringement is problematic. So it was probably a good time for the litigation to end so that that question doesn’t have many more opportunities to be answered unfavorably for the RIAA.
It makes less sense to think of copyright in terms of the right to “copy” as it did in the analog-only world. What’s more important now, it seems, is a distribution or access right. Another reason to focus on the ISPs and not the individuals. For more on this, see the work of Ernest Miller and Joan Feigenbaum, Taking the Copy Out of Copyright [Warning – PDF file].
Shifting to a model of “punishing” file sharers before claims of infringement can be litigated presents some issues that implicate due process. See Cindy Cohn’s comments in this article.
Regardless of the legal merits of one’s claim (i.e., the RIAA certainly has legitimate rights to enforce), there is a public relations downside to standing up for those rights.

No matter what the shift of strategy really means, the fact that there is a shift at all demonstrates the changing dymanic of the music industry. And it points to a shift, both practical and normative, in the manner copyright law applies to the digital content.

Photo courtesy Flickr user [nati] under this Creative Commons license.

Distribution under the Copyright Act requires more than merely making copies available

Atlantic Records v. Howell, No. 06-2076 (D. Az. April 29, 2008)

Several record companies, including Atlantic Records, sued Pamela and Jeffrey Howell after the record companies learned, through their private investigator, that the Howells used KaZaA to share files. After discovery in the matter closed, the record companies moved for summary judgment, asserting that the Howells infringed the copyright in the sound recordings merely by making them available for the public to copy. The court found in favor of the Howells and denied the motion.

The Copyright Act provides that an owner of a copyright enjoys certain exclusive rights in connection with the work including, among other things, the exclusive right to distribute copies of the work. The record companies case was a bit problematic on this point, as the only evidence of record was that the allegedly infringed files were in KaZaA’s shared folder. There was no indication that actual copies of the files had been transferred.

In support of the argument that making the sound recordings available was an unauthorized distribution, the record companies relied heavily on Hotaling v. Church of Jesus Christ of Latter-Day Saints, 188 F.3d 199 (4th Cir. 1997). In Hotaling, the court held that a library which created a number of unauthorized copies of a work and made those copies available in its various branches could be liable for infringement, despite the absence of evidence that any member of the public had viewed the unauthorized copies.

The Hotaling decision was based largely on policy grounds. The library kept no records of who had viewed the unauthorized copies, thus the plaintiff could not provide direct evidence that the works were distributed to the public. The court opined it would be against sound policy for defendants to avoid liability through the omission of record keeping.

The court in this case rejected and criticized the Hotaling decision, holding that evidence of making a copy available “only shows that [a] defendant attempted to distribute the copy, and there is no basis for attempt liability in the statute, no matter how desirable such liability may be as a matter of policy.”

The recording companies argued that although the term “distribution” is not explicitly defined in the Copyright Act, it is synonymous with the term “publication,” which the statute defines to include “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” 17 U.S.C. § 101. In other words, if the Howells offered to distribute the copyrighted works to the public for purposes of further distribution, they distributed the works within the meaning of the Copyright Act.

But the court looked to the plain meaning of statutory provision granting an exclusive right to distribute, which requires an identifiable copy of the work to change hands in one of a number of prescribed ways (e.g., sale or lease) for there to be a distribution. The court found it untenable that the definition of a different word in a different section of the statute was meant to expand the meaning of “distribution” and liability to include offers to distribute.