Q1 2009 Quick Links, Part 1 (Copyright Edition)

By Eric Goldman

[Note: for a couple of years, I have grouped items that didn’t warrant a full blog post into a monthly “quick links” post. As you can infer, one month has now stretched to three months, which severely undercuts the currency of the information. This isn’t tenable for me or all that useful for you. In the future, I still expect to do occasional quick links posts, but I am also going to exclusively post some of these current small items to my Twitter account instead. So if you want to see “everything” I’m tracking on Internet and IP law, sign up for my Twitter account or get the RSS feed. That said, I have a series of backlogged quick links posts that will be coming very soon for Q1 2009. I’ll start with the copyright edition:]

* The US Supreme Court has asked the Solicitor General to provide a brief in the Cablevision case before it takes or denies cert. Somehow I don’t see this as good news for the Second Circuit opinion.

* Jacobsen v. Katzer, No. C 06-01905 (N.D. Cal. Jan. 5, 2009). On remand from the Federal Circuit, the lower court dismissed the breach of contract claim for lack of alleged damages and on copyright preemption grounds. The court also denied a preliminary injunction for the copyright claims because of a lack of showing of future harm.

* Reed Elsevier v. Muchnick. The Supreme Court granted certiorari in the Tasini case again, this time to decide the issue “Does 17 U. S. C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?” In other words, can a settlement of a copyright class action lawsuit include unregistered copyrights? As a matter of statutory construction, I think the answer is no; as a matter of policy, I expect the Supreme Court will say yes.

* MDY Industries, LLC v. Blizzard Entertainment, Inc., 2009 WL 223631 (D.Ariz. Jan. 28, 2009). The latest ruling: “Plaintiff MDY is liable under the DMCA, that Donnelly is personally liable for MDY’s tortious interference, copyright infringement, and DMCA violations, and that Blizzard is entitled to a permanent injunction against the continued sale and distribution of Glider.” With all of the adverse rulings, it’s hard to believe that WOW Glider is still fighting this case.

* US v. Dove. A judge finally understands demand curves and that demand when P = 0 is greater than when P > 0. I discuss this issue more in my warez trading article.

* Speaking of warez trading, a large-scale warez trading prosecution ends with no jail time for any of the defendants. To compare how favorable this is for the defendants, see my 2004 analysis of warez trading sentences.

* Apple v. Psystar, No. C 08-03251 WHA (N.D. Cal. Feb. 6, 2009). Psystar can allege copyright misuse as an affirmative counterclaim in a declaratory judgment (but presumably only for the “limited” remedy of declaring Apple’s copyrights unenforceable).

* Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 637102 (S.D.N.Y. March 4, 2009). No 512(f) claim for any takedown notices that the service provider ignores. From a policy standpoint, this is completely screwed up–takedown notices ignored by the service provider pose the greatest legal risks to the provider and cause the most sleepless nights.

* In UMG v. Veoh, the judge limited UMG’s claims against Veoh’s investors and board members. Strike a blow against tertiary copyright infringement!

* Dahn World Co. Ltd. v. Eun Hee Chung (D. Md. Feb. 5, 2009). The court awarded the defendant attorneys fees in an unmeritorious 1201 anti-circumvention case.

* The GateHouse v. New York Times lawsuit settled. The press release and the settlement agreement. The NYT largely appeared to fold, but given that the NYT is de-integrating the links and turning off the traffic, can we really say that GateHouse won? BTW, check out UCLA law professor Doug Lichtman’s lengthy (and very expensive) expert report in favor of the plaintiffs, arguing why fair use should not apply here (through an expert report…???).

* Arista Records LLC v. Usenet.com, Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009). While in litigation, Usenet.com accelerated the expiration date of certain newsgroups, which prevented the plaintiff from getting data it had requested. The court held that this reconfiguration was a sanctionable spoliation of evidence, leading to adverse evidentiary inferences against Usenet.com and an obligation to pay the plaintiff’s fees and costs.

* Viacom Intern., Inc. v. YouTube, Inc., 2009 WL 102808 (N.D. Cal. Jan. 14, 2009). Viacom’s contractor Bay TSP is ordered to produce documents to YouTube.

* Mike Masnick on optimism and denial in the music industry.

* At the AALS Annual Meeting in January, there was a truly first-rate presentation on open source software (Heather Meeker’s talk in particular was amazing). Rebecca’s recap, or check out the podcast.

* Reminder about the 1909 Copyright Act celebration at SCU on April 30. Demand has been surprisingly strong, and we are getting close to the room’s capacity. If this continues, we may need to establish a waiting list. If you want to make sure you can attend, register now.