A Legal Blog by Aaron | Sanders, PLLC

Cox Rocked, Part 2: What the Jury Said (and Why)

Broadband Isn’t a “Draw” for Infringement, but What About Substantial Non-infringing Uses?

Back in late 2014, two of Rightscorp’s clients, BMG Music and Round Hill Music, sued the cable operator and internet-service provider, Cox Communications, for copyright infringement on grounds that Cox was liable for its users’ sharing of the plaintiffs’ copyrighted musical compositions using the BitTorrent protocol.

What’s Right for Rightscorp

Although it wasn’t a party, the case was crucial to Rightscorp. Rightscorp is in the business of investigating the sharing of copyrighted work over BitTorrent protocol and obtaining modest settlement from the BitTorrent users. For example, if Rightscorp thought you had shared “Bad Blood” using BitTorrent, it would send you a settlement demand of, say, $500—or some figure that’s low enough for you to afford but not high enough to be worth fighting over. It’s a low-return–high-volume business. And for it to work, Rightscorp needed to get as many settlement demands to users as possible.

But to do that, Rightscorp needed the cooperation of ISPs. That’s because Rightscorp doesn’t actually know who the user is. It just knows the user’s IP address at the time of the alleged file-sharing. Only the user’s ISP knows which of its users was using a…

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What Reggaeton-Style Music Can Teach Us About Copyright Licenses

‘Tis Often Better to Willfully Withhold Royalties than Exceed the Scope of the License

You are a licensee to many, many copyright licenses, whether you know it or not. Most of them—such as the ordinary applications you have on your computer, or song files you’ve downloaded from iTunes—shouldn’t keep you awake at night. At least, not too much, so long as you make sure you don’t make more copies than you paid for. These licenses are like borrowing a tool from your neighbor that you never ever have to return. Yeah, it’s technically his, but for practical purposes, it’s yours.

But some licenses are like renting little plots of land. So long as you stay on your little plot, you’re OK. Once you step off, though, you’re a trespasser. And these are often (but not always) licenses important to your business.

An example might be a license to translate a novel into Polish and to sell copies of the translated novel in Europe, in exchange for a portion of the proceeds. If you translate the novel into Lithuanian, you’ve infringed the copyright in the novel (specifically, the adaptation or “derivative works” right). If you distribute copies of your Polish Translation in North…

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Aereo into the Cloud: Further Thoughts About the Aereo Decision

“The Cable Defense,” “The Cloud” and More about Causation and Copyright

Last time, I tried to make sense of the Supreme Court’s decision in ABC v. Aereo. But there are a couple of major issues that I wasn’t able to touch on: (1) What’s all this about Aereo now saying it’s a cable system? (2) I thought maybe the Aereo decision was going to hurt “Cloud”-based industries? and (3) are we no longer to look “under the hood” of technology to resolve our copyright issues (after the Court dismissed on argument as relying on technology “behind the scenes”)? I also (4) have some further thoughts about the causation requirement in copyright cases (i.e., all that business about “volitional conduct” and “proximate causation”).

1. Is Aereo a Cable System?

As we all know by now, the Supreme Court ruled against Aereo essentially because Congress had set out in 1976 to ensure that cable systems (or, more precisely, their direct technological predecessors, community access TV systems) were “performing,” regardless of whether you thought of them as broadcasters, viewers, or mere conduits. Further, the Court held that such performances were public because Aereo looked a lot like a cable company, and cable companies perform their…


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The Color Run v Photographer Part 2: The Joys of Copyright Registration and the Perils of Being a Licensee

Part 2 of 3: The Photographer’s Case

Last time, I discussed how The Color Run, a party with (as we’ll see) fairly sophisticated IP counsel, got into such a pretty bad, but avoidable, public-relations scrape with a freelance photographer, Maxwell Jackson, who is (as we’ll also see) very unsophisticated about IP. The main problem was that the parties were way too casual in licensing the photographer’s works for The Color Run’s use, and the parties ended up with two very different understandings of what The Color Run could do with the photographs.

Either they didn’t actually reach an agreement (a “meeting of the minds” as lawyers like to say), or they quickly forgot what they had agreed on. Whichever, they didn’t think to resort to the sensible but surprisingly rare expedient of putting in writing what they want. The Color Run just assumed it could use the photographs however it wanted*, and Jackson just assumed that The Color Run would help promote his business by attributing the photographs to him.**

* One can speculate how The Color Run came to this misunderstanding. Perhaps it thought it could ride roughshod over an individual photographer? More likely, in my experience, is simply…

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Toward a Constitutional Model of Statutory Damges Part 2

An Ironic Model: Follow Exxon Because it’s NOT a Constitutional Ruling

Way back in October, I got half-way to proposing a constitutional model for statutory damage awards. More precisely, I got through the part where I reject the two leading models, which happened to have been the competing models in Capitol Records v. Thomas-Rasset—(1) St. Louis, Iron Mtn. & S. Ry. Co. v. Williams and (2) BMW of N. Am., Inc. v. Gore. My starting off point, which you may or may not agree with, is that we have a right to some degree of predictability of the legal consequences of our actions, which is necessary for us to go about our business, and that statutory damages have become out of control and unpredictable.

What I’d like to propose is, ironically, that we avoid the whole constitutional question because the Copyright Act is federal law, and federal law already has a way of dealing with a close cousin (in my opinion) of statutory damages: exemplary damages. It is, thus, the Supreme Court’s opinion in Exxon, not Gore and not Williams*, that governs here.

* Williams governs, too, in that it governs a legislative body’s power to enact and set statutory…

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