Nesson Denied

[This is the article I was referring to in class tonight.]

Music downloading hearing can't be streamed online
By RUSSELL CONTRERAS, Associated Press Writer Russell Contreras, Associated Press Writer
Thu Apr 16, 8:15 pm ET

BOSTON – Oral arguments in a music downloading lawsuit filed by the recording industry against a Boston University student can't be streamed online, a federal appeals court ruled Thursday.

The 1st U.S. Circuit Court of Appeals overturned a previous decision that allowed online streaming and said it was "bound to enforce" rules that close federal courtrooms in Massachusetts to webcasting and other forms of broadcast.

Charles Nesson, a Harvard Law School professor representing student Joel Tenenbaum, had requested that a courtroom video service be allowed to transmit a hearing to the school's Berkman Center for Internet and Society, which wanted to stream it unedited on its Web site with free access.

U.S. District Judge Nancy Gertner approved the request in January.

But the Recording Industry Association of America, a Washington, D.C., trade group representing the U.S. recording industry, appealed the decision, arguing that it violated federal court guidelines on cameras and threatened its ability to get a fair trial.

The federal appeals court agreed with the recording industry and said Gertner's ruling was based on "incorrect interpretation" of the law.

"This is not a case about free speech writ large, nor about guaranty of a fair trial," the court wrote, but about "the governance of the federal court."

Nesson said the ruling was disappointing but not unexpected.

"The judges, they are from a different age," he said. "They don't recognize that the Internet is fundamentally different than traditional media."

He vowed to pursue appeals in every possible way, including the U.S. Supreme Court. But he also said the ruling would not delay the substantive proceedings in the Tenenbaum case and he would go forward with motions before Gertner.

RIAA spokeswoman Cara Duckworth said the organization was pleased with the appeals court's decision and looked forward to moving on to the copyright infringement case.

Fourteen news organizations, including The Associated Press and The New York Times Co., had urged the appeals court to allow online streaming.

In a concurring opinion, Judge Kermit Lipez agreed that Gertner erred in allowing webcasting of oral arguments. But Lipez wrote that existing rules prohibiting online streaming should be re-examined.

Tenenbaum, of Providence, R.I., is accused of downloading at least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004.

He offered to settle the case for $500, but music companies rejected that, ultimately demanding $12,000. He could be forced to pay $1 million if it is determined his alleged actions were willful.

The recording industry has said in court documents that its efforts to enforce the copyright law are protected under the First Amendment.

In December, the group said it had abandoned its policy of suing people for sharing songs protected by copyright and will work with Internet service providers to cut abusers' access if they ignore repeated warnings.

The recording association said it will still continue to litigate outstanding cases.

Class on Monday 4/13

As noted by Korey earlier today, our make-up class will take place in Rusty Dobbs on Monday. The class will be recorded for those who cannot make it.

Jeremy will be giving a short (less than one hour) lecture. There is no reading assignment (other than the Dean's List day-of). I will spend the second hour distributing the final issue list and reviewing the answers to questions that have already been sent my way, in addition to some general review. If there are topics you would like addressed, please let me know as soon as possible. If you will not be in class, you may get the issue list by emailing me / getting a copy from Korey.

Have a great weekend!

More on Nesson and the P2P case

How great was Marglin's lecture! For those who missed it, you are encouraged to listen to the recording that should be available via the library / Korey.

Here are some additional materials on the case - one from the Dean's List today and one from David - thanks, David!

http://blog.pff.org/archives/2009/04/tenebaum_two-card_monte_and_the_sophistry_of_profe.html#more

http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 (slow to load today)

French Parliament Rejects "Three-Strikes" P2P Legislation

http://www.dmwmedia.com/news/2009/04/09/french-parliament-rejects-%2526quot%3Bthree-strikes%2526quot%3B-p2p-legislation

Authored by Mark Hefflinger on April 9, 2009 - 8:20am.
Paris - The French Parliament has surprisingly voted against the "three-strikes" law that would see repeat file-swappers lose their Internet connections, after both the National Assembly and Senate approved differing versions of the bill, according to published reports. Apparently, the ruling UMP party was overconfident that it had enough votes to pass the legislation, but not enough members showed up for the vote, and Socialist parliamentarians showed up in force at the last minute to defeat the bill, by a vote of 21-15.

"It's an immense joy," Socialist legislator Patrick Bloche told the Associated Press.

French Culture Minister Christine Albanel plans to reintroduce the bill later this month, Ars Technica reported.

"It is disappointing that the law was not confirmed today, but we understand that the French Government will be resubmitting the law very shortly," John Kennedy, head of international record label trade group IFPI, told Ars Technica.

Posting Nesson Link / Reminder re Issue List

If you reviewed the Dean’s List yesterday you may have noticed Dean Kay’s references to Nesson (professor at Harvard Law) and a current file sharing case ("Harvard P2P Lawyer: File-Swapping Is Fair Use— No, Really!" and "Harvard Prof. Praises 'File-Sharing Radiohead'")

David Marglin will address this topic in class (as a relevant current event – not as part of his lecture, per se), including some detail based on his own experience with the matter. If you have particular interest in this topic, you should review the following:

Read this down to p 14:

http://www.scribd.com/doc/13831120/Nessonblog33009

… to where it starts to be TOP EVIDENCE EXAMS 2009...

REMINDER: Please send me your issue lists before class tomorrow.

James Martin's Class is now 4/1 :: Reading Assignment

As communicated by Korey, class we had to move a few things around next week. James Martin will lecture on Wednesday 4/1 (regular class time) and John Jeffrey will give a make-up lecture, possibly at my office, later in the month. There will not be a Monday/Tuesday class next week.

James will be giving a lecture entitled "Case Study on CastTV." Note that the subject is not patent litigation as it has been in years past. This class will function to tie much of what we have studied thus far together.

Below is the reading assignment. Each work was carefully selected. Please do your best to get through it before next week as your ability to grasp these issues and engage in class is directly tied to your familiarity with the caselaw and related materials assigned.

1. Surf the CastTV site (http://www.casttv.com/), including the FAQs (http://www.casttv.com/faq)

2. Review the following two cases:

MGM v. Grokster, 545 U.S. 913, 125 S.Ct. 2764 (2005) http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) http://w2.eff.org/legal/cases/Perfect10_v_Google/p10vgoogle.pdf

3. Review CRS Report for Congress re: Cartoon Network v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) http://wikileaks.org/leak/crs/RL34719.pdf

4. Review the YouTube Terms of Service (http://www.youtube.com/t/terms)

Another good piece on Choruss

http://www.techdirt.com/articles/20090318/0304264167.shtml

Note about 3/18 Class

Zahavah Levine's lecture is sure to be a highlight of the course. Her new class title and reading assignment are posted with the syllabus below. Please check back in coming days for updates. See you next week!

From Chris Castle

Chris sent this relevant piece as a follow-up to his Choruss discussion in class last month. Enjoy.

http://www.xplosiveworld.com/2009/03/04/dear-jim-griffin-and-the-scoundrels-of-choruss/

Writing Assignment Due 3/18/09

In “RIP: A Remix Manifesto” Larry Lessig captures the essence of the filmmakers’ point with the following statement:

“There is no way to kill this technology; we can only criminalize its use. If this is a crime, we have a whole generation of criminals.”

Comment on this copyleft statement and give a recommendation for legal policy with regard to remixing / similar uses of third party content in the manner that Girl Talk does to create his music. Specifically, should this be legal or not – why? How should the law respond to these uses of third party content?

Please bring your 3-4 (double-spaced) page paper to our 3/18/09 class. Your grade will comprise 20% of your final grade for the course. Email me if you have any questions.

Reading Assignment for 3/4 Class

You should all have the reading assignment by now (it was emailed by Korey). Please contact me at cmak@real.com if you still need it.

See you tomorrow -- we will be having a "decompression" after class.

Larry Lessig at UC Hastings on 3/19/09

More info here: http://uchastings.edu/news/docs/legally-speaking.pdf

The first two students to email me (cmak@real.com) with correct answers to the following three questions will get a ticket on me (tickets are being sold for $50 each). (I will update this post when the tickets are spoken for.) THE TICKETS ARE SPOKEN FOR. THEY WILL GO TO: Dan Cunha & Lindsey Shinn. Thanks for playing :)

1. What popular television show included an appearance by a Lessig (portrayed by an actor) in 2005?
2. What Supreme Court Justice did Lessig clerk for?
3. After almost a decade at Stanford, Lessig will be leaving California indefinitely later this year. Where is he going, and why?

Thoughts and Follow-Up on 2/18/09 Class

I welcome students' thoughts on class last night. Bill and Chris are new to the course, the only "first timers" during the entire semester. It was also the first time we used such a format - two lectures and a mock negotiation. They hadn't received the "no war stories" talking-to that I have given speakers in years past, so we had some more color than usual, but I think it was appropriate given their subject and the longer class period. I am eager to hear any feedback students have - whether that is via comments here / email / in person chat the next time we meet.

I noticed this article in the Dean's List this morning. The writer addresses the problem of label-distributor partnerships highlighted in our class last night in a very accurate way, IMO. I'll also post the follow-up piece (expected next week).

http://www.washingtonpost.com/wp-dyn/content/article/2009/02/17/AR2009021701753.html

(added 2/20): Note too that Facebook has retreated. Zuckerberg's blog post about the return to the original ToS is here: http://blog.facebook.com/blog.php?post=54746167130; in a nutshell:

"A couple of weeks ago, we revised our terms of use hoping to clarify some parts for our users. Over the past couple of days, we received a lot of questions and comments about the changes and what they mean for people and their information. Based on this feedback, we have decided to return to our previous terms of use while we resolve the issues that people have raised."

He makes a good point about the impact of this document too. Something to think about from a legal / public policy perspective:

"More than 175 million people use Facebook. If it were a country, it would be the sixth most populated country in the world. Our terms aren't just a document that protect our rights; it's the governing document for how the service is used by everyone across the world. Given its importance, we need to make sure the terms reflect the principles and values of the people using the service."

Finally, here is the ipodmeister piece I mentioned:

http://www.thelicensingplate.com/what-is-the-longveity-of-a-lawfully-made-copy/

Enjoy the film next Thursday.

Please read this before 2/25/09

http://techliberation.com/2008/12/01/lessigs-call-for-a-simple-blanket-license-in-remix/#more-14606

The Skinny on the Long Tail

http://en.wikipedia.org/wiki/The_Long_Tail

The article that started it all:

http://www.wired.com/wired/archive/12.10/tail_pr.html

...and Chris Anderson's blog for added color:

http://www.thelongtail.com/

A Timely Piece from Chris Castle

Soft Power and the Demise of "Free" Culture

By Chris Castle on February 5, 2009

Appointments in the Obama Administration make it clearer every day that the President fully understands the fundamental economic principle taught in every freshman econ class around the world--there is no such thing as a "free" culture.

This realization is of particular importance at a time when our international relations are in dire need of improvement. Our foreign policy professionals require all the tools they can get their hands on to build a vibrant cross-cultural human network. These concepts are familiar to readers of Joseph Nye's Soft Power and the recent report of the Center for Strategic and International Studies Smart Power Commission.

"Smart power" is a foreign policy doctrine originated at CSIS that balances the use of "hard power" (such as weapons) with "soft power" (a country's cultural attractiveness) to win the battle for hearts and minds as well as military victories.

The inventory of soft power opportunities range from hospital ships to the Voice of America, vaccination programs to academic exchanges. But soft power also includes popular culture, preferably a robust popular culture. More people in the world know of Louis Armstrong than know of Allen Dulles. And probably adore Satchmo a lot more. He didn't play music because he wanted to be "Ambassador Satch," but he became one of America's greatest cultural ambassadors because he could earn a living playing music.

There are few countries that have benefited more than the United States from the attractiveness of its ubiquitous popular culture. While Professor Nye does not expressly offer a correlation between the ability of the creative community to sustain itself as a measurement of the success of soft power as a foreign policy objective, Nye probably didn't think it necessary to make that connection when he first articulated these concepts in the late 1980s and early 1990s. The economic liberties and labor value that fuels the engine of popular culture were not then under attack.

But they are now. Because in order for popular culture to remain part of the tools available to those charged with operating a successful foreign policy for the United States, it is of critical importance that American culture survive and be regenerated, not fail and be regurgitated.
The importance of these tools are not to be underestimated. Professor Nye notes in Soft Power "[l]ong before the Berlin Wall fell in 1989, it had been pierced by [music,] television and movies.... Lennon trumped Lenin.... One [Chinese] dissident told a foreign reporter [during the Tiananmen Square massacre] that when she was forced to listen to local Communist Party leaders rage about America, she would hum Bob Dylan tunes in her head as her own silent revolution."

These are all examples of the importance of maintaining cultural contact with both our friends and enemies. Unfortunately, the engine that drives the production of popular culture around the world is under attack online at levels that surpass anything experienced in the physical world.

Whether that attack succeeds or fails determines the availability of these smart power options.
Ivory tower "free culture" apologists and their followers position an artist's struggle for economic freedom as a "war" that pits "Silicon Valley" (aka "innovation") against "Hollywood" (aka "Hollywood"). This view misses the point--absent a respect for fundamental economic freedom and for labor value, arguing over control of the distribution channel is a rather meaningless exercise in wedge politics.

Many of these same "free culture" academics incongruously champion the Internet as democratizing the distribution channel so the "little guy" can circumvent "Hollywood" while they simultaneously beat the drum for a government-mandated compulsory license and government-mandated pricing for all content. The rationale often heard for these extremist wage controls is that the current crisis online has produced a "market failure." Yet a fundamental element of a market is respect for basic economic rights would afford creators the ability to sustain themselves from their work product. Absent these rights there is no market, and therefore there can be no market failure.

If these basic rights are not protected, the distribution channel eventually will fill with net pollution and will be of less value to everyone. That's already happening.

Once talent is lost, it is lost forever. If it is extraordinarily difficult for creators to earn a living, there will not be another extraordinary "Ambassador Satch."

So when considering popular culture as a component of soft power in formulating foreign policy, our government ought to start at home by protecting the fundamental economic liberties that sustain the creative community both offline and online and reward the labor value of creators.

http://blog.artsandlabs.com/2009/02/soft-power-and-the-demise-of-free-culture.html

Reading Assignment for 2/4/09 Class

(updated at 1pm 2/1/09)
Below are links and details about the reading assignment for Wednesday's class. Whitney and I have discussed and want you to know that we recognize that this is a lot of material - especially considering the shorter notice than usual. Please do your best to at least skim the "required" reading with the understanding that you may have to revisit and review more carefully later in the semester (particularly if this is a topic of particular interest to you). As Whitney said, read it all as a practitioner would; you can skim certain parts but be sure to have a solid sense of the substance as it may apply to your area of expertise/interest.

See you Wednesday.


Required Readings:

Title 17, Section 115, Compulsory License for Making and Distributing Phonorecords and DPDs
http://www.copyright.gov/title17/92chap1.html#115

RIAA/NMPA/HFA Agreement Regarding On Demand Streams and Limited Downloads
http://www.nmpa.org/pdf/press_releases/FinalRIAAAgreement10_29_01.pdf

RIAA/NMPA/DiMA Agreement Regarding Rates for On Demand Streams and Limited Downloads
http://www.nmpa.org/pressroom/showrelease.asp?id=164
http://futureofmusiccoalition.blogspot.com/2008/10/agreement-royale.html

Register of Copyrights Ringtone Decision
http://www.copyright.gov/docs/ringtone-decision.pdf

Copyright Royalty Board Mechanical and Digital Phonorecord Delivery Rate Determination
http://www.loc.gov/crb/proceedings/2006-3/dpra-public-final-rates-terms.pdf

Suggested Readings:

US v. ASCAP Second Amended Final Judgment (DOJ Consent Decree)
http://www.ascap.com/reference/ascapafj2.pdf

TAKING THE COPY OUT OF COPYRIGHT
Ernest Miller and Joan Feigenbaum
http://cs-www.cs.yale.edu/homes/jf/MF.pdf

Abstract. Under current U.S. law and common understanding, the fundamental right granted by copyright is the right of reproduction – of making copies. Indeed, the very word “copyright” appears to signify that the right to control copying must be a fundamental part of any system of copyright. Nonetheless, we claim that this assumption is incorrect. The advent of digital documents has illuminated this issue: In the digital realm, copying is not a good predictor of intent to infringe; moreover, copying of digital works is necessary for normal use of those works. We argue that the right to control copying should be eliminated as an organizing principle of copyright law. In its place, we propose as an organizing principle the right to control public distribution of the copyrighted work.


THE DIGITAL DILEMMA, INTELLECTUAL PROPERTY IN THE INFORMATION AGE
http://books.nap.edu/html/digital_dilemma/

From the Executive Summary:

Borrowing a book from a local public library would seem to be one of the most routine, familiar, and uncomplicated acts in modern civic life: A world of information is available with little effort and almost no out-of-pocket cost. Such access to information has played a central role in American education and civic life from the time of Thomas Jefferson, who believed in the crucial role that knowledge and an educated populace play in making democracy work. Yet the very possibility of borrowing a book, whether from a library or a friend, depends on a number of subtle, surprisingly complex, and at times conflicting elements of law, public policy, economics, and technology, elements that are in relative balance today but may well be thrown completely out of balance by the accelerating transformation of information into digital form….For intellectual property in particular it promises more--more quantity, quality, and access--while imperiling one means of rewarding those who create and publish. It is at once a remarkably powerful medium for publishing and distributing information, and the world's largest reproduction facility.

THE STRUGGLE FOR MUSIC COPYRIGHT
By Michael W. Carroll
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=687963

Abstract:
Inspired by passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Ironically, although music publishers and recording companies are among the most aggressive advocates for strong copyright in music today, music publishers in eighteenth-century England resisted extending copyright to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was originally far more circumscribed than it is today and that music - which currently is treated as core copyrightable subject matter - presented a difficult case. A number of audiences will benefit from a better understanding of the struggle over music copyright, including scholars who advance general theories about the evolution of property rights and policymakers seeking to place the current disputes over music copyright in historical perspective.

ISPs and the Digital Music Industry

As a follow up to our discussion in class yesterday, all students are advised to review the first five articles posted via the Dean's List today (Thursday, 1/29.09).

I will post Whitney's reading assignment as soon as I have it.

*

***

*******

***

*

Also, I owe you all a clarification regarding the RIAA litigation strategy wrap up:

The $222K was not a settlement, it was a verdict. The judge was the one who called it out as wrong after the fact:

"On September 25, the Law Blog asked whether liability for music file-sharing was on its way out the door. Why? Because last year, in the first ever file-sharing trial, a jury found Jammie Thomas, a single mother, liable for copyright infringement for offering to share 24 songs on the Kazaa file-sharing network. Thomas got hit with a $222,000 verdict. At trial, Judge Michael Davis told the jury that merely making songs available for distribution — known in copyright circles as the “making available” standard — was enough to constitute a copyright violation. In other words, the record companies didn’t have to prove actual distribution took place. But then, in September, Judge Davis not only decided his instructions were wrong, but he also implored Congress to change copyright laws to prevent excessive awards against individuals in similar cases."

http://blogs.wsj.com/law/2008/12/19/recording-industry-to-end-litigation-strategy-thanks-judge-davis/

Updated Syllabus 4/3/09

Digital Media Law Seminar Syllabus

UC Hastings College of the Law
Spring Semester, 2009

Class Time: Wednesdays 4:40 – 6:50pm (unless otherwise noted)
Class Location: 198 McAllister Room 219


1/14/09 Cecily Mak: Introduction; Digital Music Law: Licensing and Distribution Models
Reading assignment: Landy, pp. 517-541; 1/14/09; Dean’s List (day of)

1/21/09 No Class; students are encouraged to attend the UC Hastings Intellectual Property Career Fair

1/28/09 Sarah Solomon: IP Licensing Basics
Reading assignment: Landy, Chapter 8; Dean’s List (day-of)

2/4/09 Whitney Broussard: Music Publishing on the Internet
Reading assignment: Listed in post above & Dean’s List (day-of)

2/11/09 NO CLASS; this class is treated as a Monday

2/18/09 Bill Growney & Chris Castle: Content License Agreements; Digital Media Considerations for Artists and Distributors
NOTE: this class will be three hours long and will conclude at 7:50pm.
Reading assignment: Distributed in 2/4/09 class (one deck, 3 articles & one agreement) & Dean’s List (day-of).

2/25/09 Movie Day: Rip; A Remix Manifesto
Reading assignment: view this 19 minute video and article posted (related written assignment to be announced on the blog before 3/4/09):



3/4/09 Jon Blaufarb (& Associate Dave Kostiner): Music Rights and Artist Management in the Digital Age: A Music Artist’s Guide to Distribution and Marketing Music over the Internet; Long Tail; 360 Deals, etc.
Reading assignment: TBD and distributed during 2/25/09 class & Dean’s List (day-of). Writing Assignment shall be posted on Class Blog before this class; due in class 3/18/09

3/11/09 NO CLASS; Spring Break

3/18/09 Zahavah Levine: User Generated Content & Intermediary Liability: DMCA & CDA 230
Reading assignment (in addition to Dean's List, day of): (1) IO Group v. Veoh Networks, US District Court, Northern District of California (August 28, 2008) found at http://www.eff.org/files/Io%20v.%20Veoh%20(d%20ct).pdf, (2) a to-be-provided outline from Fred Von Lohmann of the EFF, and (3) Mark Lemley, Rationalizing Internet Safe Harbors (2007) (wherein he argues that all intermediary liability should look more like 512, but which includes a nice overview of the entire landscape) found at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=979836>

4/1/09 James Martin: Case Study: CastTV
Reading assignment posted as a new post above on 3/24/09 + Dean’s List (day-of)

4/8/09 David Marglin: Database Law and Licensing: Sui Generis, Self-Help, and the Grey Areas of IP Protection
Reading assignment: Agreement emailed by Korey + Landy, pp. 27-28; 191-200; 517-522; 536 (starting with “The Hot News Doctrine”)-543; 570-572
NOTE: this class will be extended to 7:30pm.

4/13/09 Jeremy Korer: Deal Making in the International Sports and Entertainment Industry [NOTE: CLASS in Room 640 of the 200 McAllister Building]
Reading assignment: None, though please read the Dean's List (day-of)

4/15/09 John Jeffrey: ICANN and Beyond
Reading assignment: Landy, pages 92-94; additional assignment to be distributed; Dean’s List (day-of)

4/21/09 This Tuesday will be treated as a Wednesday; Review

5/5/09 Final Exam

2 Minor Corrections to Landy's Book; reading assignment No. 1

p. 528: replace "performance" with "sound recording" in the second sentence of the "Finding Music Copyright Holders" section.

p. 533: cross out "It seems clear that" at the beginning of the second sentence of the "Public Performance and Downloading" section.

RIP: A Remix Manifesto

More here: http://www3.nfb.ca/webextension/rip-a-remix-manifesto/