Justice Department Eyeballs Google Settlement

In the fast-paced world that is the Google Book Settlement, the Justice Department has decided to review the proposed settlement to determine whether it violates any anti-trust laws. We'll update this post to explain what this means shortly.

Google Book Settlement Stalls

Today, Judge Denny Chin extended the deadline to opt-out of the Google Book Settlement. First, a little history. Several years ago, Google embarked upon an ambitious project to scan every book ever created. Working with several institutional libraries, Google has, thus far, scanned approximately 7 million volumes.

In 2005, the Authors Guild and others commenced a class action against Google alleging that the scanning project infringed upon the individual authors copyright rights. We won't get into the basis for the lawsuit here. In 2008, the parties reached a complicated settlement that addresses Google's prior actions in scanning the 7 million volumes and also grants Google significant rights to continued use of its digital library going forward.

The forward looking aspects of the settlement are unusual. Class action are typically resolved by providing some measure of compensation for prior acts and an agreement that the behavior that led to the class action is not repeated. This settlement is different. The settlement agreement runs 334 pages long (no, that's not a typo) and includes more in attachments (200 pages) than primary text (134 pages). A vast array of rights are implicated in the settlement agreement and a new entity -- the Registry -- is created to administer those rights on behalf of authors.

We represent at least two class members of the Google Book Settlement who received their notice within the last two weeks. We suspect that other clients of ours may be class members, but they have yet to receive any notice. We are pleased that the deadline is extended and thank Gail Steinbeck and Andrew DeVore for their efforts. If you have received a class notice or suspect that you may be a member of the class, we'd be happy to help you understand your rights. We're also interested to know if you have only recently received your notice.

Eagle Attacks Elephant

They say that politics makes strange bedfellows. Don Henley, legendary voice of the Eagles found himself associated with Chuck DeVore, a California Assemblyman, and Republican, who created political songs by altering the lyrics to "The Boys of Summer" and "All She Wants to do is Dance."

DeVore used the music to the songs and created new lyrics to boost his campaign for the United States Senate. The assemblyman created videos from the song which were distributed and posted on YouTube.

Henley, who did not want to be associated with DeVore's campaign asked YouTube to remove the video. It did, but it was reposted following a request by DeVore. Now, Henley has sued.

This case will likely turn on whether the reworking of the two songs is protected under the fair use doctrine. DeVore will likely face an uphill battle to argue fair use. It is undisputed that he used all of the music from the two songs and there is nothing to suggest that the reworked songs were satire or parody.

Generally, to qualify as a parody, the new work must recall the original. The classic case of parody involves the group 2 Live Crew, which created a parody of the Roy Orbison classic "Pretty Woman." The Supreme Court was persuaded that the 2 Live Crew song was protected as fair use, largely because the Court concluded that the new work was in part a comment on the original work. Of course, parody is a subjective concept, so it is difficult -- if not impossible -- to define bright line rules to follow.

Trib Calling Dick Tracy

Tribune Media Services has sued Warren Beatty, seeking to recover rights to the "Dick Tracy" comic strip series. Beatty purchased the rights in the 1980s, which resulted in the film starring Beatty and others in 1990. According to the complaint, Tribune's contract with Beatty allowed it to get the rights back if Beatty did not start any other projects based on the comic strip within five years after the release of the film.

After many years had passed, Tribune sought the rights back from Beatty, but he claimed to be in production on a half-hour special for the sole purpose of extending his rights. Beatty then sued Tribune, asking a court to bless his maneuver. However, in December, Tribune filed for bankruptcy protection and Beatty's lawsuit ground to a halt.

When a company files for bankruptcy protection, all litigations against it are automatically stayed. This allowed Tribune to commence its own lawsuit -- within the friendly confines of the Bankruptcy Court -- asking that the court award it the rights to "Dick Tracy." We'll see how the case proceeds.

RIAA Pwned by Expert

Evidence can be a pesky thing. The endless formalities of the trial process. And, oh yes...it better be accurate. In another chapter that is the saga of the effort by the Recording Industry of America ("RIAA") to crackdown on illegal downloads -- one person at a time -- a defense expert has chastised the methodology used by the RIAA to support its infringement claims.

We previously posted about a Connecticut decision holding that the RIAA had to prove that files had actually been downloaded from an individual computer to win its case. A Minnesota federal judge has made a similar ruling, creating a significant roadblock in the first trial to be held among the scores of cases the RIAA has been prosecuting. Capital Records, Inc. et al v. Thomas, No. 06-CV-1497.

District Judge Michael J. Davis had originally concluded that the mere availability of files on a peer-to-peer network, in this case Kazaa, was enough to hold the defendant liable. Proof that a particular song was available on a peer-to-peer network seems relatively straightforward. But what about proof that a particular file was downloaded? How do you prove, in a peer-to-peer environment with thousands of linked computers that a file was accessed from one particular computer. This requires more than just evidence that the file existed.

Yongdae Kim, an assistant professor of computer science at the University of Minnesota points out just how difficult a task the RIAA faces. For instance, Kim noted that MediaSentry, RIAA's expert, ignored innocent reasons to explain the presence of the disputed files on her hard drive. For example, the files could be copies of legally purchased CDs. Further, Kim pointed out that Windows XP and the Internet are replete with security holes. These security holes, which can be accessed anonymously by hackers, make it very hard to identify an individual user. So, evidence that the defendant engaged in actual distribution is unreliable.

The Court has scheduled a retrial in this case for May 11. Courts don't care for unreliable evidence. If MediaSentry can't come up with a better methodology, the retrial may prove to be difficult for the RIAA.

Not McLovin' It

Never underestimate the power of formality. We know that registering a copyright can seem like a pain -- as well as an unnecessary expense. After all, copyright protection exists whether a work is registered or not. Relying on this, many artists opt for the so-called "poor man's copyright." They put their work in an envelope and mail it back to themselves and rest easy knowing that they have fully protected themselves. Well, guess again. As a photographer in Puerto Rico learned, the failure to formally register a work with the Copyright Office can yield harsh results.

Antonio Amador is an artist who specializes in photographs of the Puerto Rican landscape. In 2006, Amador discovered, to his considerable surprise, that the McDonald's restaurant at Luis Munoz Marin International Airport had enlarged copies of two of his photographs on display in the restaurant. To make matters worse, the restaurant had displayed these photographs since 2001. Amador had not given his permission for McDonalds to enlarge and hang his photographs. And Amador had gone through the formalities of registering his copyrights in his work -- one in 2004 and the other in 2006. However, he had published the photographs in 1999 and 2003. Publication under the Copyright Act essentially means that they were offered for sale.

Understandably upset, Amador sued McDonalds seeking statuory damages, which can be up to $150,000. It should have been an easy case to win. After all, the photographs were clearly his, he had observed the formality of registering his Copyrights, and McDonald's clearly infringed upon his rights by enlarging and then displaying copies of the photographs without permission. The result, however, may seem surprising. The United States District Court of Puerto Rico ruled that Amador was precluded from recovering statutory damages and attorneys fees. Amador v. McDonald's Corp. et al., No. 07-1312, 2009 WL 349804 (D.P.R. February 11, 2009). In other words, Amador lost the case.

Here's where Amador went wrong. He did register his work with the Copyright Office, but he waited too long to do so. To be eligible for statutory damages under the Copyright Act, an artist must register the work within three months of first publication or prior to the acts of infringement. In this case, Amador didn't do either. He formally registered his works several years after publication and several years after McDonald's act of infringement.

Before you lick the next envelope addressed to yourself, think of poor Amador. Copyright registration is easy to do and not that expensive. Also, registering the copyright gives you a powerful tool in policing potential infringement.

Doing Time

When considering the consequences of copyright infringement, we tend to think about money damages or an injunction that stops a project dead in its tracks. Would anyone be surprised to learn that you could go to jail for copyright infringement? If so, put on a DVD and actually watch the warning. When you see it, you will learn what Kevin Cogill knows -- that copyright infringement can be criminal and result in up to one year in prison and a $100,000 fine.

Kevin Cogill uploaded nine tracks from the new Guns N' Roses album "Chinese Democracy" to the internet prior to the album release. He was prosecuted for criminal copyright infringement and ultimately pled guilty. In his plea, Cogill admitted that he got the tracks from a third-party, but the source was undisclosed. The uploaded tracks were available for download by the public at large. Through advertising on his website, Cogill profited from the availability of the songs on his website. Now, the government has asked that he be sentenced to six months imprisonment in an effort to deter other infringers. In particular, the government called leaks of pre-release works a "serious and growing commercial threat demanding more of a punishment than a slap on the wrist." The RIAA, the recording industry trade association, in a victim impact statement, claimed that the recording industry lost more than $3 million in sales as a result of Cogill's acts. The $3 million in sales roughly equals 150,000 copies of the album.