April-May 2011 Quick Links, Part 2 (Copyright Edition)

By Eric Goldman

* COICA is dead, but S. 968, the PROTECT IP Act, has arisen from its ashes. Criticisms from technologists and the EFF.

* The Department of Homeland Security’s domain name seizures are probably the single worst US government abuse of the Internet ever. Further confirmation of that: Techdirt: “Why We Haven’t Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling.”

* CA SB 550: Latest ridiculous proposal from the RIAA, especially in light of the DHS f-ups: “The bill would authorize law enforcement officers to perform inspections, as specified, at commercial optical disc manufacturing facilities during regular business hours without a warrant for the purpose of verifying compliance with these provisions and would authorize law enforcement officers, in performing these investigations, to seize any optical disc or production part manufactured in violation of these provisions.” Wired’s coverage: “RIAA Legislation: No Warrant Required to Search, Seize Optical-Disc Plants.”

* S. 978: proposal to amend criminal copyright infringement laws to create a felony for streaming. In my work on criminal copyright infringement, I explained that criminal copyright infringement was an inexorable path to become meaner.

* There were a lot of interesting developments in the LimeWire case leading up to the damages trial.

– statutory damages are computed on a per-song basis so long as the songs were commercially available individually. Contrast the Bryant case.

– the labels had already collected damages from the direct infringers in 104 recordings. Nevertheless, the court says the labels can collect statutory damages from LimeWire for these recordings as well, but the judge can adjust the award to reflect this. [Arista Records LLC v. Lime Group LLC, No. 06-5936 (S.D.N.Y. April 6, 2011)].

– LimeWire could not introduce evidence that it had a good faith belief that they were not operating an unlawful business [Arista Records LLC v. Lime Group LLC, No. 06-5936 (S.D.N.Y. April 20, 2011)].

– The parties ultimately settled for $105M.

– In a partially related development, CNET was sued for facilitating copyright infringement by distributing LimeWire. Tertiary infringement anyone?

* Another copyright owner gets a Pyhrric victory on damages. In Gaylord v. US, the Postal Service reused a photo for one of its stamps and the court found copyright infringement. The photographer asked for $3M; instead, the court awarded damages of only $5,000.

* ACEMLA v. ASCAP (1st Cir. April 21, 2011). Copyright fee shift (17 USC 505) available for the defendant even if the plaintiff didn’t make a timely registration of the copyright.

* There were many lowlights in the Righthaven train wreck over the past two months. Two of the lowest:

– Righthaven’s Strategic Alliance Agreement with Stephens Media was released (starting on page 6). Joe Mullin’s recap. In response to the agreement, the court in Righthaven v. Pahrump Life ordered Righthaven to show cause why case should not be dismissed for a sham copyright assignment, and Judge Kane has stayed all of the Denver Post-related Righthaven litigation in Colorado pending an analysis of Righthaven’s standing under its agreement with MediaNews.

– Righthaven dropped the Brian Hill lawsuit after the judge had some impliedly critical remarks about the case. The dismissal. In the dismissal, Righthaven griped that “Righthaven was unaware of the Defendant’s alleged medical condition prior to filing suit.” Well, that’s why respectable copyright owners send takedown notices before running to court without all of the facts. It’s hard to be sympathetic to Righthaven when it fails to do even basic pre-suit research and then bitches about being surprised. Pathetic. Righthaven continues: “Defendant’s incessant use of the Internet as a means to post inflammatory statements about Righthaven and about these legal proceedings say more about his cognitive ability than one would otherwise surmise from the press statements made by his counsel.” Classy… The court didn’t appreciate Righthaven’s saber-rattling and struck that part of the pleading. As Joe Mullin indicates, Righthaven’s antics have annoyed the judge, and Righthaven may want to rethink its entire Colorado litigation strategy. Righthaven struck back with an incredible F-U to the judge. Meanwhile, was Righthaven pressuring Hill to agree to a false press release as part of the proposed settlement?

* AdAge: When It Comes to Ad Avoidance, the DVR Is Not the Problem

* Google lost its Belgian appeal in the Copiepresse case.

* Eros v. Linden settled.

* Angst over Lady Gaga’s requirement that photographers assign over the copyrights to the photos they take at her concerts.

* Perfect 10 v Giganews complaint.

* Flowserve Corp. v. Hallmark Pump Co., 2011 WL 1527951 (S.D. Tex.). A company copied-and-pasted its competitor’s product shots as depictions of its own products, which you can’t do. Rebecca is on the case.

* Venkat and I participated (with Evan Brown and Jonathan Bailey) on TWiL 111, mostly discussing copyrights. Listen in.

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