The First Circuit’s decision upholding the RIAA’s challenge to Judge Gertner’s decision to permit webcasting of a motion hearing in the RIAA v. Tenenbaum case was issued on April 16, 2009, very shortly after oral argument.
The First Circuit, interpreting a D. Mass. Local Rule, held that U.S. District Judge Nancy Gertner’s interpretation of the local rule concerning photographing recording and broadcasting of courtroom proceedings was “palpably incorrect”.
This result is quite disappointing for many people who had hoped that the First Circuit would hold that Massachusetts District Court Judges have have the discretion to webcast court proceedings in their courtrooms, and that this would be a first step toward allowing the public to view federal district court civil proceedings. The decision will, many hope, lead to a change in the pre-Internet Age Rule that was found to prohibit the webcast.
Here is the First Circuit’s recent decision upholding a preliminary injunction in a copyright case out of D. Puerto Rico. The sole issue on appeal was the holding on substantial similarity. The products were stuffed animals, specifically, frogs. Or, more specifically, the Puerto Rican tree frog, the Coqui. I’ve tried to find a picture of the defendant’s stuffed animal frog with no luck.
Massachusetts U.S. District Court Judge Nancy Gertner issued an order permitting the webcast of a scheduled in-court motion hearing in the RIAA/Tenenbaum copyright downloading case. The RIAA challenged the order, arguing that a federal rule prohibits the webcast. Here is yesterday’s audio of the First Circuit oral argument, with Harvard Law Prof. Charles Nesson arguing for Tenenbaum.
Interesting fact from the article: On YouTube alone ten hours of video content are put online every minute of every day, more than 250,000 clips per day.
As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconstitutional.
Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum. This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death. Oh, and Nesson’s team is “immortal” for all practical purposes – I suspect there’s nothing that Nesson would like more than to take the constitutional challenge to the Court of Appeals and then the Supreme Court. I doubt that the RIAA ever expected this, but they can’t exactly back down at this point. I hope to write about this case it in more detail in a future post, and highlight some of the bizarre turns the case has taken with Nesson guiding Tenenbaum’s defense.
A great blog that is following this case in more detail than I could ever have thought possible is Ben Sheffner’s Copyrights and Campaigns.
Are business training materials sufficiently original to be protected by copyright law? The answer, of course, is “it depends.” First and foremost it depends on the materials themselves, but it also depends on the judge. In Situation Management v. ASP, Massachusetts U.S. District Court Judge William Young thought the training materials created by the plaintiff, Situation Management, were not entitled to copyright protection. (I posted on this case when Judge Young’s decisionwas issued – click here for earlier post).
Judge Young was not complimentary toward Situation Management’s training materials. In the process of holding that the materials were not entitled to copyright protection he described them as nothing more than “a summary of common-sense communication skills . . . “fodder for sardonic workplace humor” and as “aggressively vapid”. He observed that “the works at issue are so dominated by nonprotectable material that it is impossible to reduce the work to a copyrightable essence or structure.” He found that the materials were filled with generalizations, platitudes, and observations of the obvious” . . . [contained] “not-so-stunning revelation[s],” and taught “[a]t their creative zenith, . . . common-sense communication skills.” Not finished, he observed that “these works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid — hundreds of pages filled with generalizations, platitudes, and observations of the obvious.”
The First Circuit disagreed and reversed. The heart of the decision is captured in the following quotation:
. . . the district court improperly denied copyright protection to large portions of SMS’s works because it, in an error of law, found “they focus on concepts and teach a noncopyrightable process.” . . . The fact that SMS’s works describe processes or systems does not make their expression noncopyrightable. SMS’s creative choices in describing those processes and systems, including the works’ overall arrangement and structure, are subject to copyright protection. . . . The district court’s analysis . . . lost sight of the expressiveness of the works as a whole by focusing too closely on their noncopyrightable elements.
In June 2007 I wrote a post discussing two cases in which clients of our firm had, before they became clients, failed to get written assignments of copyright ownership from independent contractors who wrote software for them. Without a written assignment the contractors were able to claim ownership of the works, and make life very unpleasant for their customers, who may have assumed that since they paid for this work the code belonged to them.
A case decided last Fall shows what happens when this problem is taken to an extreme. In this case the programmer-contractor claimed ownership, and the value he assigned was in the millions of dollars. The customer was forced to go through a federal court lawsuit that involved discovery (expensive), summary judgment (quite expensive), and finally appeal to the Ninth Circuit Court of Appeals (very expensive), only to finally have a court declare that it owned an “unlimited, non-exclusive, implied license to use, modify and retain” the source code written by the contractor.
While this case had a happy ending for the customer, the entire expense, as well as the risk of a loss, could have been avoided if the customer had a piece of paper with only one sentence, signed by the contractor: “I hereby assign to [customer] all right, title and interest to all intellectual property developed by [contractor] during the course of any engagement by [customer], including but not limited to all property protected by copyright, patent or trade secrets.”
[Update: the FTC did file a reply brief. Link here]
All the briefs are in on the FTC petition for cert in its antitrust case against Rambus, (unless the FTC decides to file a reply brief, which is unlikely to change things much). I’ve added the Rambus opposition to the Rambus Group page on scribd.com, here. Now its time for the antitrust community to hold its breath and see whether the Court takes the case. Some knowledgeable commentators have opined that FTC/Rambus case has the best chance of any antitrust case obtaining review this year, but that plus a dime will get you …. well, nothing I guess. If the petition is allowed, it will be very exciting times for antitrust and standards setting law and policy wonks.
In federal court in Boston the Gatehouse Media v. New York Times case (described in these two (1, 2) earlier posts) has settled, as I suspected it would. The settlement agreement (or a preliminary agreement which is binding in the event a “definitive agreement” is not reached), is on scribd.com, here. It appears that this agreement was not intended to be made public (at least not yet), but apparently someone leaked it, so it’s public now.
As I read this, Gatehouse prevailed, hands down over the NYT/Boston.com. Gatehouse will erect “technical solutions” to prevent Boston.com from copying the Gatehouse original content, and Boston.com will respect those “solutions.” If a “solution” proves ineffective, Gatehouse will notify Boston.com, and Boston.com will back off right away. Why the parties went about it in this manner (which implicates DMCA-like anti-circumvention) I’m not sure, but I appears to accomplish the same result as if the NYT/Boston.com simply said “we won’t copy your ledes.”
From what I can seek, Boston.com/yourtown has already dropped its ledes and links to the Gatehouse sites, at least based on a quick sampling.
[postscript: here is a link to the report of Gatehouse’s copyright expert, Douglas Lichtman, Professor of Law, UCLA. The report is an analysis of the case under copyright fair use principles, and a rebuttal of the NYT/Boston.com’s unclean hands argument]
Some interesting goings on on the copyright front in D. Mass. are worth a brief mention.
First, U.S. District Court Judge Nancy Gertner has ruled that proceedings in the RIAA’s case against Joel Tenenbaum, alleging illegal downloading, may be “webcast” by the Berkman Center. Whether the actual trial will be webcast is undecided as yet, but upcoming in-court motions will be. The audio-visual will be streamed live by the Berkman Center at no charge to viewers. Tune in on January 22nd to see the circus. [Update: the First Circuit held that the trial could not be webcast].
I find the following quote from the decision to be quite humorous:
In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet. . . Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the Internet.
While the Plaintiffs object to the narrowcasting of this proceeding, . . . their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation.
Meanwhile, in the Gatehouse Media copyright case against the New York Times, Gatehouse has filed an unopposed motion, asking Judge Young to rule on whether the court has jurisdiction before the copyright registrations for the material in dispute have been issued by the Copyright Office. This is a frequent controversy, and one of interest to copyright lawyers representing plaintiffs whose unregistered works are the subject of infringement – may they proceed with suit, and perhaps a preliminary injunction, or are they bound to wait for the registrations to issue? Apparently, this issue was of enough concern to Gatehouse Media that it filed this brief, collecting and arguing the legal precedents on this issue.
When I discussed the copyright case Gatehouse Media v. The New York Times over the weekend I hadn’t reviewed the court docket, and hadn’t been aware that Judge William Young had pulled the trick that he is famous for (at least locally): when a party requests a preliminary injunction, he responds by ordering an expedited trial. And I do mean expedited.
The case was filed on December 22, 2008.
Docket entry 13, issued the same day, states in relevant part (cleaned up a bit for readability):
Electronic Clerk’s Notes for proceedings held before Judge William G. Young: Motion Hearing held on 12/22/2008 re MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order filed by Gatehouse Media Massachusetts, Inc.
The Court rules denying Motion for TRO; because the matter will be collapsed with a trial on the merits. The Court is reserving ruling on Motion for Preliminary Injunction; ( Jury Trial set for THE RUNNING TRIAL LIST AS OF 1/5/2009 09:00 AM before Judge William G. Young.); Counsel are to cooperate with one another re: discovery. Counsel are to contact the clerk as to the schedule. A 4 week jury trial is scheduled for Jan 5 at this time. If counsel settle the case, a phone call is all that is necessary.
Translation – be ready for trial at 9:00 a.m. Monday, January 5, 2009, nine business days after suit was filed. Maybe we’ll reach you, maybe we won’t (that four week case may settle), but you’d better be ready. Oh, and enjoy the two holiday weekends between now and then.
This is classic Judge Young, and he’s been doing it from the first day he was appointed to the federal bench over 20 years ago.
The moral: if you file a suit in federal court and you are seeking a preliminary injunction, be prepared for the risk that you might draw Judge Young, in which case, be very prepared. A super-expedited trial like this favors the defense, since the plaintiff will have great difficulty preparing for trial in two weeks. Assuming you don’t want to be prepared for trial on the day you file suit, the way to avoid this, in this district, is to file suit and see what judge you draw. If you draw Judge Young, you can decide whether you want to file for a PI and risk an immediate trial. There’s no law that states that you must file your PI motion simultaneous with the complaint, but filing the PI motion simultaneous with filing suit deprives the plaintiff of that choice.
In this case, Gatehouse Media could have adopted a different strategy, as follows:
File suit and see what Judge is assigned to the case. If Judge Young is assigned, do not file a preliminary injunction motion, knowing that this risks an immediate trial.
As you publish your local news each week, file copyright registrations for each issue. This is inexpensive, and so simple it could be done by an intern or paralegal. If Boston.com adds towns (beyond Newton, Needham and Waltham), register the weekly publications for those towns as well.
By registering the copyrights within three months following publication, Gatehouse Media would be entitled to recover statutory damages for each publication, as well as attorney’s fees incurred in prosecuting that infringement. Statutory damages may be as great as $150,000 per infringement in cases of “willful” infringement – that is, $150,000 per publication. If Boston.com is aggregating and publishing the Gatehouse Media news for Newton, Needham and Waltham each week, Boston.com is looking at potential damages of as much as $450,000 per week. By the time the case goes to trial in the ordinary course (say a year), Boston.com is risking damages in the tens of millions of dollars. Would that financial risk be likely to lead to a settlement favorable to Gatehouse Media? You betcha!
An interesting copyright case has been filed in Federal District Court in Massachusetts.
In Gatehouse Media v. The New York Times, Gatehouse Media contends that the Times has infringed its copyrights by copying the headlines and first sentences from Gatehouses’ local online newspapers, and displaying them verbatim on a Boston.com website (the New York Times owns Boston.com).
To see this in action click here and your browser should open a page on Boston.com labeled “Needham.” Scrolling down the center column of the page, you’ll see news “headlines”, followed by the first sentence of each story.
If you click on one of the headlines you should be taken to the “WickedLocalNeedham” web page and presented with the full article. If you repeat this a few times with other headlines, you’ll see that the Boston.com site has copied the headlines, and the first sentences of the stories, from the WickedLocal site, which is owned by Gatehouse Media. Most likely, this is accomplished “automatically” by the Boston.com computers, which “scrape” the headlines and “ledes” from the WickedLocal site and “aggregate” them on the Boston.com site.
Is this permissible, or is Boston.com infringing copyrights owned by Gatehouse? The answer to this question is important because news aggregation is ubiquitous on the web, and there is relatively little law on the issue. U.S. Federal District Judge William Young, one of our federal district’s best judges, may have the opportunity to issue an important decision in this case. And, the fact that Gatehouse Media has asked Judge Young to issue a preliminary injunction means that a preliminary decision on the merits may issue soon (assuming that case isn’t settled in the meantime).
Gatehouse Media’s preliminary injunction papers make a powerful case for a preliminary injunction, and in my judgment Boston.com will be hard pressed to defend this suit. There is no question that the material in question is copyrightable, and that it has been copied and published on the Boston.com site.
Boston.com’s defenses are likely to be based on the fair use doctrine, but Boston.com will be hard pressed to prevail on these defenses. Commercial use, such as Boston.com is making here, makes a “fair use” defense difficult. And, while the “percentage” of material copied from each article may be small, the use is “qualitatively” significant, making a defense premised on de minimus copying difficult as well. However, I expect Boston.com to argue that the fact that the content at issue is news makes it particularly appropriate for application of fair use. I also expect Boston.com to argue that its publication not only will have no economic impact on the Gatehouse Media sites, but it will have the positive effect of driving more traffic to those sites, benefiting (rather than harming) Gatehouse Media.
I’ll publish Boston.com’s opposition memo when it becomes available and, of course, post Judge Young’s decision when it is issued.
My partners Andy Updegrove, Peter Moldave and I attended this celebration of the sixth anniversary of Creative Commons at Harvard the evening of Friday, December 13, 2008. We could have waited a few days and watched the event on YouTube, but then we would have missed the cold weather, the greatest ice storm in modern Massachusetts history, the difficult parking and, well ….
It was actually a great deal of fun, and looking around the room at the 150 or so people that attended there appeared to be relatively few lawyers, a fact that made us feel superior, as if we were really part of the Harvard cognoscenti, which of course we aren’t. (How could we tell there weren’t many lawyers there? – the number of people who had that useless, predatory look common to lawyers was minimal.)
Speakers were: Jonathan Zittrain, moderator, panelists James Boyle, Lawrence Lessig and Molly S. Van Houweling, and Special Guests Elena Kagan and Charles Nesson.
This site is hosted by Gesmer Updegrove LLP, a technology law firm based in Boston, Massachusetts. You can find a summary of our services here. To learn how GU can help you, contact: Lee Gesmer
ing the RIAA’s challenge to Judge Gertner’s decision to permit webcasting of a motion hearing in the RIAA v. Tenenbaum case was issued on April 16, 2009, very shortly after oral argument.
settlement agreement (or a preliminary agreement which is binding in the event a “definitive agreement” is not reached), is 
!["Talkin ‘Bout My [Internet] Generation" and Gatehouse Media says, "Give Us A Break Judge, the Registration is in the Mail"](https://www.masslawblog.com/wp-content/uploads/2009/01/220px-My_Generation.jpg)
.S. Federal District Judge William Young, one of our federal district’s best judges, may have the opportunity to issue an important decision in this case. And, the fact that Gatehouse Media has asked Judge Young to issue a preliminary injunction means that a preliminary decision on the merits may issue soon (assuming that case isn’t settled in the meantime).
