Reed Elsevier – the Supreme Court sticks to the question

The United States Supreme Court has delivered its opinion in Reed Elsevier v Muchnick. This is an all-American case – not only does it follow the now-familiar formula of ‘digital rights grab—class action—failed settlement’ but it centres on US copyright registration requirements.

Back in the 1980s some publishers set about digitizing newspaper and magazine articles without permission. Journalists sued in a class action. The claimants had registered copyrights but some of the members of the class had not. The district court (after the comparable Tasini case had been decided) encouraged the parties to settle. A few years later the publishers agreed $18 million compensation and the district court approved the settlement. However, some journalists were not happy and appealed. The appeals court then said something that none of the parties wanted to hear: the district court did not have the jurisdiction to approve the settlement because of §411(a) of the Copyright Act. This states that (generally) copyright infringement proceedings cannot be instituted unless the copyright has been registered. So the parties turned to the Supreme Court, submitting a petition for a writ of certiorari, to clarify the question of whether §411(a) restricts a court’s jurisdiction.

The Supreme Court has now reversed the appeals court’s decision, saying that §411(a) does not restrict the jurisdiction of the district court to approve the settlement – ‘jurisdictional’ being a very narrowly construed concept that needs to be clear in the Act. The Court was keen to put an end to ‘drive-by jurisdictional rulings’.

However, the Supreme Court specifically said that it was not addressing the question of whether district courts may or should dismiss copyright claims involving unregistered works. It would appear that the Supreme Court has answered a narrow question, leaving aside the bigger one. If the appeals court had vacated the district court’s judgment on the grounds that §411(a) required claims involving unregistered works to be dismissed (irrespective of jurisdiction), perhaps the Supreme Court would have affirmed the appeals court decision. There would seem, therefore, no evidence that this opinion will lead to a spate of US class-action claims with unregistered copyright owners piggy-backing on registered copyright owners.

Copyright in Jewish Law

Copyright in Jewish Law is the title of a book recently published by Feldheim Publishers. Its author, Rabbi Nachum Menashe Weisfish, is a Jerusalem-based scholar of Jewish law who has trawled a wide variety of source materials in order to produce what the publisher describes as

"the first sefer [this term is used for a book with Jewish religious content rather than, say, a secular legal textbook] to clarify what is and what is not permissible to copy. A definitive work, with practical answers to questions regarding photocopying machines, compact discs, computers, the internet, and more. Widely acclaimed by Gedolei Yisrael [those whose scholarship is acknowledged by others], and with extensive Hebrew footnotes and sources, this sefer is a great aid to Rabbanim [rabbis], talmidei yeshivah [students of institutions where Jewish law is learnt], and laymen alike".

From this introduction it can be seen that the text of Rabbi Weisfish's work is addressed to students of Jewish law who seek to understand how the issues raised by copyright -- a body of rules that is not obviously addressed in the Bible itself or in ancient oral tradition -- are tackled and resolved by mainly modern Jewish thinkers. The text is in a clear and accessible English, though this work is a new rendition of the author's earlier work, in Hebrew, Mishnas Zechoyos HaYotzer. The footnoted source materials, a little disconcertingly for the English reader but invaluably for the Jewish scholar, remain in the original Hebrew.

The reader who is well-versed in copyright law will find this tome something of a culture shock since discussion of the usual international treaties and conventions, national statutes and judicial lawmaking is notably absent. Instead, he will be introduced to rulings, majority and minority opinions, analogies and syllogisms which are a far cry from the laws he deals with on a daily basis. However, as one might expect in any religious system in which divine law is generally limited neither in time nor in space, the rules that govern copyright under Jewish law do not depend on the mere chance that one is living in 21st century New York rather than, say, the 19th century Ungvar in which Rabbi Shlomo Ganzfried composed his abbreviated code the Kitzur Shulchan Aruch, one of the many legal materials cited in this book. So, if you want a fresh look at copyright, this book offers you a fascinating intellectual holiday from your habitual copyright thoughts.

Bibliographic details. ISBN: 978-159826-442-5. Hardback, xxvii + 259 pages, 2010. Book's web page here. And before you ask, the text reads from left to right ...

Have you seen IRIS yet?

Francisco Javier Cabrera Blázquez (Analyst, Legal Information at the European Audiovisual Observatory) writes:

"I am the deputy editor of IRIS, a free legal newsletter published by the European Audiovisual Observatory. The newsletter reports on matters relevant to the audiovisual industry (including, among other things, copyright law). I was thinking that readers of this blog might be interested in it. You can see it here.

Here is some information about the newsletter: IRIS – Legal Observations of the European Audiovisual Observatory reports monthly on the most important legal developments for the audiovisual industry in 36 European countries. In more than 30 short articles, it provides a regular, free overview of what has been happening at national and international level in relation to legislation or court decisions in fields such as broadcasting, cinema, video-on-demand services and IPTV.

IRIS regularly covers themes such as developments in the television, on-demand service and film sectors, as well as closely related events in the communications sector. Expressed in terms of traditional categories of law, the e-newsletter reports on the latest developments in the fields of competition, copyright, data protection, criminal and tax law, for example, insofar as they are particularly relevant to the audiovisual sector. As far as law-related policy developments are concerned, IRIS also contains articles on freedom of information, media concentration, media pluralism, youth protection, self- and co-regulation, etc.

I hope you will find it interesting".

Thanks, Francisco, for letting us know!

Digibill in a hot spot

How will copyright infringement via wi-fi be handled under the Digital Economy Act? This factsheet says wi-fi providers could either fall under the Act's 'ISP' or 'subscriber' definition – each establishment has to work out which it is for itself! Most wi-fi providers would be subscribers, so could find themselves receiving letters from their ISPs. The factsheet acknowledges that it will be hard for wi-fi providers to prevent all infringement but that does not let them off the hook. They should try to put people off, employing various psychological and technological methods. Those who baulk at the idea of internet filtering may soon find it being employed on their trains and in their coffee shops...

Further comment here on ZDnet.

Copyright Tribunal: more lovable from 6 April

A press release from the UK's Intellectual Property Office announces that the resolution of disputes by the little-loved Copyright Tribunal will make it "faster, cheaper and fairer". According to the Office:

"Collecting societies, small businesses and individuals will soon find it simpler, cheaper and quicker to resolve disputes about copyright licensing schemes through the Copyright Tribunal. Simplified and modernised rules of procedure, on which licensing societies, industry and consumer groups were consulted last year, will come into effect from the 6th April 2010.

These changes seek to

* Promote the effective resolution of disputes in a fast-changing business environment by introducing procedures in line with the Civil Procedure Rules 1998.

* Improve access to the Tribunal for small businesses and individuals by introducing a small applications track for quick and economical resolution of small cases.

* Reduce costs and delays in large-scale litigation by providing for active and robust case management. ...

The revised rules will enable the Tribunal to deal with cases justly and fairly but more rapidly. This will be done by ensuring the parties are on equal footing; saving expense; dealing with cases on a proportionate level according to the complexity, amount of money, and financial position of each party; and by dealing with cases quickly, fairly and with the best use of time and resource.

The revisions to the Tribunal's Rules of Procedure take into account recommendations made by the then Innovation, Universities and Skills Select Committee in its Report of March 2008, recommendations made by an internal Intellectual Property Office Review of 2007, and comments made by stakeholders in response to these reviews".

Of all these things, I'm most pleased about the promise of 'robust case management' -- particularly if has the effect of reducing the volume of technical analysis relating to royalty calculations, market impacts etc which some of us have been known to pretend to understand before preparing to flip a coin ...

Latest Copyright World

The February 2010 issue of Copyright World, published 10 times a year by Informa Law, came shimmying through my letterbox this morning. Among its contents are the following items of note:

* "Beware of the blog", by Rita L. Berardino and Jessica M. Kiser, who explore the spectrum of content and infringement liability risk associated with corporate blogging;

* "The case of the copied photograph", claiming that "a landmark Italian decision has established that producing a painting of a photograph may result in copyright infringement". The authors are Edith Van den Eede and Luca Trevisan (Trevisan & Cuonzo Avvocati);

* "How litigation changed peer-to-peer file sharing", penned (as if anyone uses a pen these days ...) by the Arnold & Porter duo of Richard Dickinson and Alex Watt.

Baidu found to infringe with lyric use

After a run of success in the Chinese courts, search engine Baidu has now lost a lawsuit in the Beijing courts. The new case centred on the use of lyrics of songs that Baidu posts next to its MP3 search function. It was sued by the Music Copyright Society Of China, which said the search firm did not have the appropriate licence to publish song lyrics owned by its members. The Beijing People's Court for the Haidian District agreed and fined Baidu, 50,000 yuan plus 10,000 yaun legal costs just over £5500).

Baidu’s usual (and so far successful) defence that it only provides links to infringing sites failed on the facts of this case as the lyrics were actually posted and published on Baidu’s site (rather than linked to) next to links to MP3 search functions. Baidu plans to appeal.

Has Nesson turned the tide ......

Harvard Law School professor Charles Nesson, who along with a team of his students is defending Joel Tenenbaum, the post graduate student ordered to pay the recorded music industry the combined sum of $675,000 for downloading and sharing songs online has asked a federal judge to reduce the penalty or order a new trial. Nesson’s latest argument is that Tenenbaum only caused the companies to lose a total of $21 when he failed to pay 99 cents charged online for each of the 30 songs in question – and this should be the limit of his damages. Tenenbaum, a Boston University student admitted to downloading music and was penalised in July after being found guilty of violating copyright rules for downloading songs between 1999 and 2007 (see previous blogs on this site). His lawyers have appealed against the "severe" and "oppressive" damage award, asking that it be reduced to 99 cents for each song. The recording labels have described Tenenbaum as a "hardcore" infringer. Interestingly I asked my own students about the latest appeal and a straw poll revealed that sympathy had actually swung to the record labels! The idea of a ‘infringe now, pay iTunes if you are caught’ policy really did strike them as somewhat preposterous – it would be fascinating if Nesson’s defence actually sparks sympathy for the Recording Industry Association of America, routinely reviled and mocked in the blogworld for ‘suing its own customers. Times, they are a changin!
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/23/AR2010022305114.html