Q3 2012 Quick Links, Part 2 (Copyright)

By Eric Goldman and Jake McGowan

* Horrifying video evidence that the police probably grossly misused their police power to arrest Kim Dotcom. Related: Timothy Lee: Feds: We Can Freeze Megaupload Assets Even if Case Dismissed. My prior blog post.

* Wired: Oops! Copyright Cops Return Seized RojaDirecta Domain Names — 19 Months Later. EFF coverage. More evidence that ICE simply has no idea what it’s doing with its domain name seizure campaign. A disgusting misuse of government power.

* Jennifer Granick: TVShack Extradition Case Tumbling as Seventh Circuit Holds Linking/Streaming is Lawful. Here’s the complaint in U.S. v. O’Dwyer (SDNY). Related: Leaked Documents Detail The MPAA’s Plans for Sock Puppetry To Mislead People About Richard O’Dwyer.

* WPIX, Inc. v. ivi, Inc., August 27, 2012: “Internet retransmission services are not cable systems and do not qualify for § 111 compulsory licenses.”

* Capitol Records, Inc. v. Thomas-Rasset, 2012 WL 3930988 (8th Cir. Sept. 11, 2012): “a statutory damages award of $9,250 for each of the twenty-four infringed songs, for a total of $222,000, does not contravene the Due Process Clause.”

* Tenenbaum jury award reaffirmed on remand. Prior blog post.

* Real View v. 20-20. Expert cannot come up with good comparable licensing transactions for a defendant downloading its competitor’s software via P2P file-sharing to develop a non-infringing alternative.  As a result, the judge’s prior remittitur order stands, meaning the plaintiffs get a $4,200 award after 4 1/2 years of litigation.  Sounds like a pretty poor business decision. Prior Blog Post.

* Oracle and SAP stipulate to $306M of damages.

* Dell Cullum v. Diamond A Hunting, Inc., August 8, 2012:

the district court did not abuse its discretion in treating the photographs as a compilation instead of individual works for purposes of calculating damages. The record fully supports the conclusion that Cullum’s photographs constituted one work “in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” Cullum registered the photographs in question under a single copyright registration number, and he marked the disc that he filed with the United States Copyright Office containing these photographs as “Set Number 1.” Furthermore, Cullum himself refers to the photographs in the record on appeal as a “collection.”

* Palmer Kane LLC v. Scholastic Corp., 1:11-cv-07456-KBF (S.D.N.Y. July 16, 2012). Photographers can’t establish class action against textbook publisher for allegedly exceeding permission scope.

* Pearson Education Inc. v. Almgren (8th Cir. July 13, 2012). Even when the defendant committed willful copyright infringement, the plaintiff doesn’t automatically get a fee shift if the plaintiff is behaving badly:

In this case, the publishers sought approximately $90,000 in attorney’s fees, but the bankruptcy court found that an award of attorney’s fees would be inappropriate because (1) the publishers likely could have stopped Almgren’s conduct prior to any litigation, at minimal cost, with a simple cease-and-desist letter, (2) the publishers filed suit “in the busiest, largest, and furthest away court they could find” in an effort to scare Almgren, (3) the publishers resisted the bankruptcy court’s efforts to encourage settlement before litigating the adversarial action, and (4) the publishers’ spare-no-expenses litigation strategy was unreasonable in light of the absence of “any real damages.” The publishers argue that the bankruptcy court abused its discretion by discounting their need to act forcefully to deter willful infringement by others and leaving them “at a financial loss from enforcing their rights against a willful infringer who purposely, and fraudulently, prolonged the litigation” by fabricating a story about a roommate using his name.

To be sure, the publishers were free to make an example of Almgren by litigating their claims against him fully, within the bounds of the statutory scheme provided by Congress; they were under no obligation to employ a minimum-impact cease-and-desist strategy. However, the publishers never were guaranteed that the attorney’s fees generated by their strategy of choice would be compensated. See Fogerty, 510 U.S. at 534 (rejecting a proposed construction of § 505 that would result in an automatic recovery of attorney’s fees by the prevailing party). While a different court might have weighed the factors in this case differently, we cannot say that the bankruptcy court committed a clear error of judgment in finding that an award of attorney’s fees would not “advance considerations of compensation and deterrence” in these “particular circumstances.” See id. at 534 n.19. Accordingly, we affirm the denial of attorney’s fees.

* William T. Gallagher, Trademark and Copyright Enforcement in the Shadow of IP Law, 28 Santa Clara Computer & High Tech. L.J. 453-497 (2012). An interesting ethnographic study of IP lawyers.

* Michael Carrier, Copyright and Innovation: The Untold Story. The title overclaims, but it’s an interesting study of what might have happened if the recording industry co-opted Napster rather than killing it. I wanted to hear more about Bertlesmann’s decision to break ranks with the other labels and more about unbundling of albums into individual songs.

* Marty on a case that holds that if a client-drafted complaint is protected by copyright law, the attorney filing the complaint had an irrevocable copyright license to the complaint.

* Pirate Bay blocks did little to curb file-sharing.

* Cablevision doesn’t want its precedent to help rivals like Aereo. Prior blog post.

* The Innocence of Muslims lawsuit raises the question: Can an actress claim copyright in her performance? My response.

* David Levine recaps a few of the problems with TPP.

* NASA’s Mars Rover Crashed Into a DMCA Takedown.

* Ars Technica: ”Six strikes” Internet Warning System will come to U.S. this year.

* Wired: The Algorithmic Copyright Cops: Streaming Video’s Robotic Overlords. EFF coverage.

* Audio of my Door County talk on SOPA. [Stream] [Download]

* Notes from my very basic talk at the Sunnyvale Public Library, “Online Copyright: What You Need to Know

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