A Legal Blog by Aaron | Sanders, PLLC

Checking the Sources: Why I Questioned Nimmer on Copyright

Practitioner’s POV: Treatises Must Be Reliable

So, I’m very grateful to the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”)* for publishing my article on Nimmer on Copyright’s about-face on the “making available” theory of the distribution right**. You can read the whole thing here.

* Better known in my day as “JELP”: Journal of Entertainment Law & Practice.

** I explain what this is about near the end of this post.

Oh, are you back so soon? Well, yeah, I guess I failed to mention that it’s about 20 pages of formal prose (but the margins are so big!), there really are 169 footnotes,* and there are zero snarky asides. But you’re still interested, perhaps because you’ve heard this issue directly affects internet-based commerce**. Since you’re not a legal scholar*** and you don’t have tons of time, would I mind summarizing?

* Did I mention that I was grateful to JETLaw? I threw those footnotes together, but do you see how neat and perfect they are, and that they probably actually support the proposition they’re footnoting? You need to thank the JETLaw student editors for that. Since I was once a professional authorities editor, I know what…

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Shoot that Poison Aereo to My Heart! How a Copyright Decision Can Be So Wrong (Yet So Right)

Free-Riding on a Dream

By coincidence, the SDNY’s rejection of ReDigi’s business model happened at almost the same time as the Second Circuit’s seeming affirmation of Aereo’s business model. This coincidence led to a certain amount of bewilderment. How could one court rule to strengthen copyright at the same time another court ruled to weaken copyright? The answer, of course, is that courts don’t—or shouldn’t—worry about the relatively weakness or strength of copyrights. They’re in the business of implementing the Copyright Act—a task that just gets harder and harder. The main lesson here is that, regardless of the copyright law’s purpose and policies, it is (outside of fair use and a couple of other things) often a highly technical law that can have counterintuitive results.

I believe this images shows part of Aereo’s array of TV antennae, each the size of a dime.

Copyright as Economic Policy

The bewilderment had two sources. First, there are those with an extra-legal interest in the strength or weakness of copyrights. For both content providers, who prefer stronger copyright (but have mixed feelings about fair use), and information providers, who see strong copyright as a nuisance, the courts went 1-for-2. Either ReDigi and…


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Copyright Holders Eat ReDigi’s Cake and Have it, Too

But is the Cake a Lie?

As many of you know, the trial court in Capitol Records v. ReDigi ruled over the weekend that ReDigi’s business model of re-selling digital music files infringed the copyright. Here’s the opinion. I’ve written about ReDigi quite a lot because (1) ReDigi’s business model poses lots of unresolved legal problems and (2) I had to create a new set of posts once I (along with the rights holders) learned how ReDigi really worked. My previous ReDigi posts are collected here. I only have time for a quick post before I have to go somewhere*, so here’s my quick analysis.

* I’ll be moderating a panel on gTLDs at the ABA Intellectual Property Meeting in Crystal City. You should totally come, if you can, because my panelists are awesome and the topic is timely, important and fascinating, which will more than make up for my bumbling attempts to ask incisive questions.

I couldn’t find a free image of a Portal Cake, but this cake looks pretty good.

Background: Is ReDigi’s Cake Just Mostly Frosting?

Here’s how ReDigi works, in a very tiny nutshell. You sign up. You upload songs…


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Toward an Analytical Framework for Determining Statutory Copyright Damages

Part I: Why Williams Isn’t the Answer

Sorry, but I can’t let go of the Thomas-Rasset affair quite yet. It is not my habit to criticize court opinions. They are what they are, and the important thing for us lawyers is to understand them. But in this case, I’d like to criticize the Eighth Circuit’s decision in Thomas-Rasset to move toward a better way of thinking about statutory damages in copyright cases.

In between the snarks, the main narrative of my last two posts about Thomas-Rasset was that:

1. The Eighth Circuit had to choose between two different U.S. Supreme Court decisions:

a. Williams, which was directly on point but very old; and

b.  Gore, which was not on point but relatively recent.

2. The Eighth Circuit rationally chose to follow Williams.

3. That choice dictated the result: affirmation of the statutory damages of $9250 per song.

4. Although that choice was defensible, the result felt unjust because it punished the wrongdoer far more than her net worth.

I want to question assumption 1a: that Williams was directly on point. It isn’t. That doesn’t necessarily change the Eighth Circuit’s result, but it does show that there’s…

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Music Industry v. Thomas-Rasset: Constitutional Challenge to Copyright Statutory Damages Turned Aside

But Should Juries Have This Much Discretion?

Last time we celebrated the finality* of the music industry’s case against Jammie Thomas-Rasset. The parties, for different reasons, decided to stop insisting on remittitur, let the judge rule on the constitutionality of the $1.5 million award (for 24 songs), and appeal that ruling. The judge duly found the award unconstitutional, reduced it to $54,000, and both sides appealed. (Here’s the result.)

* Unless the U.S. Supreme Court decides to get involved. That’d be something.

The music industry didn’t care about the amount—any amount was, as practical matter, uncollectable—but cared deeply about a previous ruling by the trial court that dispensed the industry’s beloved “making available” theory of distribution. Since that ruling scotched an earlier $222,000 judgment*, the music industry sought only that amount on appeal, in effect turning back the clock. Thomas-Rasset, who cared deeply about the constitutional issue and didn’t have much to lose, out-maneuvered** the music industry by not disputing liability, which put all the focus on the constitutionality issue and took the “making available” theory off the table.

* Which was replaced by a $1.92 million verdict, then again by the $1.5 million verdict.

** I’m being…

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