On Monday, Central District of California Federal Judge Gary Klausner gave Presidential candidate John McCain, the Republican National Committee, and The Ohio Republican Party an extension until November 17 to respond to the complaint for copyright infringment filed against them by musician Jackson Brown. Judge Klausner had previously ordered the defendants to answer the complaint by October 24.
At issue in the case is a commercial released by the Ohio Republican Party that mocks Barack Obama’s suggestion that the country’s motorists could conserve gasoline by keeping their tires properly inflated. During the commercial, a sound recording of Jackson Brown’s Running on Empty plays in the background. According to Mr. Brown’s complaint, this “falsely suggests that Brown sponsors, endorses and is associated with McCain and the Republican Part. when nothing could be further from the truth.” None of the defendants sought or obtained a license of permission to use Mr. Brown’s work.
McCain and the republican party have been on the wrong end of a number of cease and desist letters from artists whose songs were used without permission of compensation, including ABBA, Franki Valli, and John Mellencamp. To date, only Mr. Brown has brought suit, but any of the other artists likely would have standing to do the same. (If you change your mind ABBA, take a chance on me.)
Assuming for the moment that this is a clear cut example of copyright infringement, the interesting question becomes what potential exposure does McCain have for damages? We don’t know what his position is because the defendants have managed to avoid answering Mr. Brown’s complaint. However, I think its safe to assume that McCain will claim that he had no hand in the development of the commercial and that he never approved violating intellectual property or publicity laws.
That’s where the Bipartisan Campaign Reform Act (BCRA), enacted in 2002, comes into play. It requires “a statement by the candidate that identifies the candidate and states that the candidate has approved the communication”. The “Stand By Your Ad” provision was intended to force political candidates running any campaign for office in the United States to associate themselves to their television and radio advertising. One would think then, as a matter of law, Mr. McCain cannot claim to be an innocent infringer. It will be interesting to see whether BCRA is interpreted this way by the court.
What if you could organize your social network around your media consumption habits? How about using your network to filter video and music content? uPlayme thinks it may have found the content sweet spot with its new application that sits on your desktop, sees the content you play on applications like iTunes and websites like Pandora and YouTube, and creates a social network that lets you chat, connect and share with new friends online.
The catch is that uPlayMe will depend on you to find and share content from non-pirated sources (YouTube is a bit suspect) and from sources that have already paid the hefty licensing fees to broadcast music (Internet Radio is hanging by a thread). If it manages not to increase the flow of pirated content, uPlayMe should be able to legitimately make moneywithout paying licensing fees or getting permission from rights holders. It’s an interesting model that mixes clearly non-infringing content (iTunes) with content that almost certainly infringes (YouTube). We’ll have to see how this plays out.
On August 27, 2008, U.S. District Judge Howard Lloyd in the Federal Court sitting in San Francisco dismissed a copyright infringement claim against video-hosting service Veoh, saying that the company had done what was required under the Digital Millennium Copyright Act (DMCA) to respect copyrights. Namely, it adopted and implemented an appropriate policy for identifying infringing content, removing the content, and disabling the accounts of repeat infringers.
Adult entertainment company Io Group filed suit against Veoh when several video clips of its registered content appeared on Veoh. However, Io Group did not send Veoh a DMCA takedown notice. IO argued that Veoh should be responsible for reviewing every video uploaded to its site before they were made available for viewing by its users. Judge Lloyd disagreed, stating that Veoh did its duty under the DMCA when it removed the videos, holding that “the DMCA was intended to facilitate the growth of electronic commerce, not squelch it… The court finds no reasonable juror could conclude that a comprehensive review of every file would be feasible.”
In summing up his reasons for dismissing the copyright infringement suit against Veoh, Judge Lloyd went on to offer some guidance for falling under the safe harbor provision of the DMCA:
“the court does not find that the DMCA was intended to have Veoh shoulder the entire burden of policing third-party copyrights on its website (at the cost of losing its business if it cannot). Rather, the issue is whether Veoh takes appropriate steps to deal with copyright infringement that takes place. The record presented demonstrates that, far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its website and works diligently to keep unauthorized works off its website. In sum, Veoh has met its burden in establishing its entitlement to safe harbor for the alleged infringements here.”
Those of you hosting user-generated content may want to read the entire opinion for tips on playing nice with the DMCA (and avoiding liability).
In May 2005 Chris Gregerson, a photographer in Minneapolis, received a copy of his local yellow pages. Looking through it, he saw a photo of his being used in Vilana Financial’s full-page phone book ad. Mr. Gregerson contacted Vilana to demand a licensing fee, which Vilana refused to pay.
Not dissuaded, Mr. Gregerson wrote about it online. Vilana sued him for defamation, producing a sales agreement signed by one ‘Michael Zubitskiy’ (who Vilana claimed took the photo and sold the rights to them). Mr. Gregerson sued Vilana for copyright infringement, and they counterclaimed for trademark infringement, deceptive trade practices, and tortious interference.
After what must have been a long road indeed, Mr. Gregerson wrote in an article to Slashdot: “There was a trial I’ll long remember on the 5th of November, and the judge recently issued her verdict. She ruled Vilana Financial forged the sales agreement and willfully infringed my photos, and awarded me $19,462. All claims against me were denied. I represented myself during the litigation.”
Mr. Gregerson, my hat’s off to you. Well done.
Not every artist has the stomach, time, or resources for a multi-year litigation against a much larger company. In fact, the legal system contains many economic disincentives against even trying. For example, this suit found Mr. Gregerson with an award of $ 19,462 (his request for fees and costs was denied because he’s not a lawyer.) His suit was filed in March 2006 an was finally decided in February 2008. Most people also don’t realize that a judgment doesn’t mean automatic money in the plaintiff’s pocket, now Mr. Gregerson must execute on his judgement.
I won’t even estimate how much he would have expended in legal fees had he hired an attorney to litigate this case, but let’s just say it would have been FAR more than the award he received. Ultimately, the court hasn’t made Mr. Gregerson whole, but I can’t help but be inspired by his success. Sometimes, the little guy really can win.
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