A Legal Blog by Aaron | Sanders, PLLC


Rick’s Copyright Course Final Exam: Part 1 of 3

Part 1: The Important Details

If you follow my Twitter account very much, you already know that, in early January, I was really suffering. I was grading law exams for my Copyright course that I had taught at Vanderbilt University Law School. The problem wasn’t what the students had written. Many of the exam papers I received were excellent. The suffering was largely self-inflicted. I could have written a shorter, simpler or narrower exam, and spared myself a lot of grief. Had I known how hard the grading would be, I might have quailed when I was preparing the exam.

Exam Philosophy

And, yet, I don’t regret how I structured the exam. It was structured to test the ability to analyze core copyright concepts (e.g., substantial similarity, originality, authorship, ownership, fair use, the exclusive rights, etc.) and the many small but important details (e.g., termination rights, duration, restoration, misuse, minor defenses, etc.), plus stuff in between (useful articles, statutory licenses, architectural works, etc.). By and large, I think it succeeded.

One can’t cover everything, and traditionally law professors have tended not to sweat the details. But I felt I had to. In copyright law, details matter. And I remember how frustrated I was…

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The Laws, They Changed Them? Maybe Pornographers Are Ruining it for Everyone

But Not for the Reason You Think

In the first part of this series, I asked whether pornographers are ruining it for everyone. Not all of the BitTorrent plaintiffs are pornographers, of course, but most estimates I’ve seen show that more of them are. A concern that a rights holder might have is that the strategy of suing mass numbers of anonymous BitTorrent defendants is already an aggressive strategy and requires a lot of cooperation from the court. With the addition of pornography to the mix, courts might find reasons to interfere with the process enough to make the strategy unprofitable for non-pornographers.

Not Industry Bias

I think pornography might make a difference (i.e., the answer to the question I posed might be “Yes”), but not necessarily because judges are biased—even unconsciously—against the pornography industry. The funny thing about judicial bias is that it pretty much has to be unconscious to have an effect. Judges are well aware that they are supposed to be unbiased—it’s baked right into the job description—and with some unfortunate exceptions, they do a good job of ignoring their personal biases. Judges are used to making unpopular rulings, and most people can distinguish between a judicial opinion and…

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Swarming the Defense: BitTorrent, Copyright and an Obscure Procedural Doctrine

Unappreciated Joinder Is Playing a Decisive Role in BitTorrent Cases

Last time, I said that the real action in these BitTorrent cases (including the one we’re discussing, In Re BitTorrent Adult Film) is “joinder,” where multiple parties are placed on the same side of the “V” in a court case—in the BitTorrent cases, sometimes hundreds, thousands or even tens of thousands of parties are placed on the defendants’ side of the “V.” A plaintiff can try to “join” as many defendants as it wants, but courts have the power to split the defendants off into their own cases, a process known as “severance.”

It’s a relatively dull topic*, but it’s proving pivotal in the BitTorrent cases. Cases in which the defendants are severed are almost never re-filed.** At first, this might seem strange. The cases are not dismissed permanently. The plaintiffs just need to re-file against the defendants as separate, individual cases. And pay the $350 filing fee for each case.

* Which is fine with me because I’m a HUGE civil procedure nerd.

** Based on my own observations and anecdotal evidence. I’m not sure if anyone has been tracking all of these cases.

All for 10,000, 10,000 for…

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The Art of Ruling on the Free-Speech Right to Speak Online Anonymously

A Judge May Have Found a Better Way

Courts have been struggling for several years now with how treat online anonymous speech when faced with requests to unmask the identities of the anonymous speakers. I outlined the issues previously in these two blog posts, but the problem amounts to:

Balancing the right to speak anonymously (an aspect of the First-Amendment right of free speech) against the right to seek and obtain redress against wrongdoers.
The sneaking suspicion that anonymous speaker is just trying to duck answering for their wrongdoing.
The sneaking suspicion that the supposedly aggrieved party is really just trying to unmask and embarrass the anonymous speaker.

It’s not just that courts have come up with a bewildering variety of tests to balance the competing rights, it’s the breadth of attitudes that courts have displayed on this issue. Some courts really privilege the right to speak anonymously. Others don’t seem to give a toss.

Another problem is that these tests are supposed to be straightforward and easy to apply–“bright-line” rules–but in practice, they usually don’t survive their application to the next set of facts. Thus, although they’re meant to be applied broadly, they tend to be limited to the facts that gave rise to…

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The Expendables 2: Revenge of the Obscure Venue Statute

How a Switch in Time Saved 23,322 John Does (Their Identities, for Now, at Least)

In a series of posts a couple of weeks ago, I discussed an important decision out of the West Coast case* regarding anonymous internet speech.  In that decision, U.S. Judge Kollar-Kotelly refused to stop (“quash”) subpoenas that had been issued to ISPs for purpose of identifying 5829 anonymous defendants, who were accused of downloading the plaintiff’s movie using BitTorrent.  I mentioned in those posts that this was one of several such BitTorrent-movie cases pending in the District of Columbia.  A few of those other cases belong to Judge Wilkins, and Judge Wilkins has just done a remarkable thing in a case involving The Expendables:  on his own volition, he has refused to let such subpoenas even issue.

 *  I think I sometimes accidentally called this the “Blue Coast” case.  Blue Coast is a better name than West Coast, but I should nevertheless try to get it right.  Something I didn’t realize about West Coast when I wrote those posts is that, unlike most of the other cases, the movie at issue is pornographic.  Perhaps that’s why the anonymous defendants were so motivated to protect…

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