I draw three lessons:

1. When someone accuses you of infringement and asks why you did not obtain legally required licenses, do not reply, as Ellen’s producers allegedly did, that you don’t “roll that way.” Otherwise, your adversary will reply:

“As sophisticated consumers of music, Defendants knew full well that, regardless of the way they rolled, under the Copyright Act, and under state law for the pre-1972 recordings, they needed a license to use the sound recordings lawfully”

2. Despite the usual tendency of major TV and film studios to be much more cautious than necessary about IP clearance and licensing, sometimes they screw up too. Even when they are, as the plaintiffs point out, “sophisticated consumers of music.”

3. I always wondered if there were some legal remedy for those dances. Once again, IP comes to the rescue.

Practically anyone can start a website and get software that snags fresh online news from those who originate it. Website owners pluck the freshest, most interesting reports and quickly post condensed rewrites. That costs them little, and they then surround the rewrites with cut-rate ads. … Usually we all benefit when more efficient competitors enter the market and drive inefficient competitors out of business. But the Internet has not made “new media” publishers more efficient at gathering news than their print counterparts. It has made them more efficient at taking news from their print counterparts and using it to compete while the news is fresh.

I love the little linguistic touches here: snags, fresh, cut-rate ads, “new media” in scare quotes, and, of course, free-riding. There are more in the article, but ironically, I cannot link to the Marburgers’ full piece because it is behind an archives paywall. Fortunately, the Madison, Wisconsin newspaper ran essentially the same article. (Apparently, I am ruining the newspaper business by quoting, linking, and discussing in this fashion…)

I later learned from Techdirt that the Brothers Marburger have been on a little crusade on this subject. Their solution, no surprise, is to resuscitate the “hot news” rule under the 1918 INS v. AP decision. That would allow newspapers to prevent others from linking to their original reporting content. (Technical detail for lawyers: There has been some confusion about exactly what the Marburgers support. The op-ed proposes lifting federal copyright law’s preemption of state unfair competition and unjust enrichment claims. They assume, I think correctly, that this would open the door to INS-style claims. I am, just responding to what they wrote.).

In their op-ed, they seemed unconcerned about the way this would devastate fair use and shut down all the vibrant discussion in the blogosphere. But since no less an eminence than Richard Posner has mused along the same lines, this strikes me as an idea to which a forceful and rapid response is necessary. As more papers begin to fold, there may be a sentimental rush to impose some kind of radical solution like this. I am very sad and worried about the threat to journalism too, but this certainly is a cure worse than the disease.

So I did what any blogging law professor does in response: I wrote a “Taking Exception” reply for the Opinion page. They ran it, but of course it is behind that paywall too. So I’ve reprinted it below. (Does that make me a parasite?) I talk a little about the law in very general terms (even simplistic, you might say), but I also try to respond to their panicked rewrite of journalism history:

In their argument for a sweeping and unwise expansion of copyright law to protect newspapers from online “free riders,” David and Dan Marburger make several unjustified assumptions. I understand and share their concern that competition from digital sources may cut ad revenue for traditional outlets. But they seem to blame the whole problem on web sites like Newser.com or the Huffington Post that link to stories in many newspapers. This diagnosis is flawed, and their proposal would be a disastrous limit on free speech.

For starters, they ignore all the other long-term challenges facing newspapers, including changing reading habits, the arrival of 24-hour cable news, poor labor relations, and the movement of readers from traditional old cities to the suburbs and the Sun Belt. As television news matured in the mid-20th century, numerous dailies nationwide folded or merged (New York City went from eight to three), yet the authors baldly and incorrectly state that broadcast news did not depress newspaper circulation.

In light of this history, it is comical to blame aggregation web sites or blogs for all newspapers’ current woes. Copyright law already forbids reprinting the whole article or anything close to it. Usually, sites adhere to copyright’s fair use doctrine by posting only short blurbs and hyperlinks that highlight newspaper reports. Many readers will learn of stories they never would have found, and follow those links to the original publication. Anyone satisfied with just these little blurbs was never going to buy a regular newspaper subscription anyhow.

The Marburgers’ dangerous proposal would expand copyright and related unfair competition law to ban web sites (and presumably anyone else) from saying “The Daily Bugle ran a story this morning about the Mayor’s new budget” and quoting a paragraph of the article. Contrary to the authors’ assertions, a 1918 Supreme Court case about the Associated Press did allow news agencies to claim unacceptable monopolies over the facts they reported. Congress wisely abolished such special rights for media companies in 1976. Bringing them back would destroy the vibrant discussion found every day on countless blogs. (And perversely, it might prevent other traditional newspapers from giving credit to the original scoop when they write follow-up stories!)

Like the record industry, some newspaper publishers want to reshape copyright law so they can keep doing business exactly the same way, despite seismic societal and technological changes happening all around them. Special exclusive rights for media conglomerates will impoverish public discourse, and they won’t work anyhow.

The paper grew out of a seemingly simple question I tried to answer a couple of years ago, namely: if I put something into the public domain, can I take it out again? On the one hand, it seems like the answer would have to be “no” for policy reasons; otherwise, what happens to all the people who might have relied on the public-domain status of the work to create their own derivatives and remixes? But on the other hand, the copyright statute in the U.S. includes some fairly obscure provisions that seem to allow authors to change their minds any time they transfer ownership of their work. Those provisions exist to solve a completely different problem, but if applied literally, they could make it possible for authors to rescind a dedication of their own work to the public domain.  As I discuss in the paper, there might be some constitutional problems with that outcome, and downstream users of a (formerly) public-domain work may be able to raise a number of valid equitable defenses to any claim of copyright infringement.  But as a purely statutory matter (as many others have recognized), it’s hard to find a basis for upholding a permanent, irrevocable dedication of one’s copyright to the public domain.

I argue in the paper that these parts of the statute may create a big headache down the road for the open-source software community, and for other large-scale informational projects (like Wikipedia, for instance) whose legality depends on the provisions of specialized copyright licenses.  Legally, all those projects rest on an interlocking set of permissions among contributors to reuse one another’s work.  But under the statute, any of those permissions can be  revoked in the future, even if the contributor promised not to.  Possible problem: what happens when somebody who contributed code to an open-source project many years ago revokes permission to continue using their work?

In the paper, I take a couple of stabs at creatively reinterpreting existing copyright law to fix the problem, before ultimately throwing up my hands and kicking it over to Congress.  I’ll post the abstract of the paper after the jump.

Here is the abstract:

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used “open content” licensing arrangements, such as the GNU General Public License (”GPL”) for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.

Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.

Would love to hear any feedback.

1. Judge Gertner will reduce the damages somewhat.
2. She will find that the statutory damages provisions of the Copyright Act do not contravene constitutional protections under the Gore line of cases.
3. The First Circuit will affirm.
4. The Supreme Court will deny cert.

I think the damages provision might be vulnerable in a specific defendant’s case (though Ms. Thomas-Rasset would be a better test than Mr. Tenenbaum here), but is safe on its face. In lawyerspeak, it’ll survive a facial challenge, but might fail as-applied.

The Gore limits depend in part on the concept of notice: defendants should know ahead of time how much they’d be liable for if they violate the law. No one expects punitive damages of 500:1 (Gore) or 145:1 (State Farm). But predicting liability – at least at its minimum / maximum amounts – is easy for copyright law. That’s a key difference between a statutory damages scheme, with a range specified by the legislature, and a common-law one where juries pick a number from a hat.

Second, the range of damages in the Copyright Act looks reasonable on its face. $30,000 per work (and up to $150,000 for willful infringement) is a lot, especially if it’s just to deter (or compensate for harm by) a single defendant. (General deterrence is out under Philip Morris v. Williams, which is sad for law & econ thinkers.) Imagine a business that runs off copies of “Harry Potter and the Deathly Hallows” in its basement and sells them. Copyright infringement of this one work is clear, but the business carefully shreds all evidence of sales. So, it’s impossible to prove actual damages; businesses are often risk-averse, meaning that higher awards of damages are needed to deter; and there’s only 1 copyrighted work at issue. Statutory damages are important to provide any deterrence – since proof of harm is under the infringer’s control – and since the infringement might be quite profitable, an award might need to be high (even $150K). Hence, the damages scheme is clearly rational in at least some cases.

The harder question is whether the unconstrained jury discretion for statutory damages could run afoul of due process protections. Individual downloaders tend to be pretty similar if you think about it: there’s not much difference between Thomas and Tenenbaum. So why is her penalty almost 4 times more per work than his, for the same type of infringement? Neither has much in the way of monetary resources, so they’re either undeterrable, or able to be deterred at a fairly low amount (marginal value of a dollar and all that). Here is where the damages scheme seems like it might be vulnerable: it does get hard to predict liability in some individual cases, and the wide range of damages looks a bit too much like absolute discretion. (Thought exercise: what if a jury could award any amount of damages per infringement? Would that improve deterrence against Tenenbaum and Thomas? Would it be significantly less accurate than the actual damages, which everyone agrees are pretty low in real terms? But such a framework would likely run afoul of constitutional limits.)

If this is right, it means that both sides should worry – as should Congress. Getting damages right is important, but preserving both procedural and substantive protections for defendants is just as much so. Comments and disagreement welcomed…

A couple of idiosyncratic highlights for me so far include:

Tom Lee’s empirical analysis of how consumers perceive the semantic or linguistic content of trademarks as opposed to their context (as in placement on packaging). While it only addresses certain kinds of situations–that is, situations where there is lots of context available for the consumer–it provided interesting data.

Laura Heymann’s presentation about the law’s treatment of personal names and how it does or does not resemble the regime for trademark law, with a focus on the interaction between denotative (source-based) and connotative (association-based) meanings of both types of names. Legal regulation (or lack of it) of name changes of both kinds raises fascinating issues.

Lisa Ramsey’s discussion of brandjacking on social network sites, which can lead to serious harms but maybe not the kind of harm trademark law addresses. (I wondered if it is possible to make a clean and principled distinction between impersonation of a trademark or its holder vs. a misleading association with one.)

My good friend Jessica Silbey’s analysis, based on narrative theory, of the rhetoric used by “access movements” such as Free Culture, A2K, free software activism, and the like. She finds that these protests against existing IP law ironically share certain key features of the traditional story told to support expanded IP rights.

Mark Lemley and Mark McKenna’s article, “Irrelevant Confusion,” which I think is destined to become a watershed in trademark scholarship.

James Grimmelmann’s presentation of a piece he is writing with Paul Ohm where they identify a coherent school of thought within cyberlaw they call (for now) “architecturalism,” typified by Jonathan Zittrain’s recent book.

Surely others would make different lists out of the nearly 100 papers. (Maybe someone might even pick mine!). As usual, Rebecca Tushnet is providing great live-blogging of the sessions she attends. Thanks to the organizers for an incredibly stimulating event.

I wasn’t at the courtroom, so I’m relying on reporting / blogs, but I think they’re wrong. Here’s why.

First, Tenenbaum’s attorneys failed to object to the liability question. So, it’s not preserved for appeal. That’s bad, unless the First Circuit decides to tackle it sua sponte, which they won’t.

Second, look at Joel’s actual testimony (quotes from Ray Beckerman’s helpful site, emphasis mine):

“He also testified that he had used the sublimeguy14 username, admitted that he had used KaZaA, and that the KaZaA shared folder in the screenshots from MediaSentry were his. He also testified that it was not uncommon for him to see other people uploading files from him on the KaZaA traffic tab.”

“He testified that he had burned CDs of the music in his shared, and testified that he had ripped CDs to his computer.”

“He testified that he had listened to, talked about, made mixes of, and made available for distribution all of the music in his shared folder.” [ignore the distribution part]

“The redirect was very short… He was asked if he was now admitting liability, to which he said yes. ”

Even throwing out the redirect, if Beckerman is reporting this accurately (I trust him), Tenenbaum has admitted to facts that constitute violations of 17 USC 106(1), 106(2), and 106(3). The liability bit came on redirect and can be ignored without affecting the outcome. The plaintiffs thus clearly made out their case on chief on infringement, and since Tenenbaum’s fair use defense was shot down ahead of time, it was all over but the shouting (and the damages calculation)…

The judge in the copyright infringement lawsuit against Joel Tenenbaum has issued a directed verdict on the issue of infringement liability. The only remaining issue for the trial is that of damages. I predict Joel is going to get whacked: he admitted to lying in a deposition, and suggested that “burglars” might have downloaded the songs to his computer. (Increasingly tech-literate, those burglars!) The jury in the Thomas-Rasset case seemed to think that her somewhat incredible story counted against her in terms of damages, and it may be the same here.

On the other hand, Tenenbaum’s defense team has substantial ammunition on its side regarding damages. Pam Samuelson’s paper makes a compelling case that the Copyright Act’s damages scheme should not only be interpreted differently by courts, but may in fact be constitutional. This could well be the most important aspect of this case.

Stay tuned – via Ben Sheffner and Brent Whelan. Predictions on the size of damages welcomed in the comments.

Here, you can browse and annotate the proposed settlement, section-by-section. … In addition, you can:

• Study our reading room of lawsuit documents
• Join the conversation in our forums
• Draft an amicus brief to the court on the wiki

This is a potentially exciting venture on two fronts. First, it may foster dialogue about the fiendishly complex settlement, which could have a huge impact on the shape of copyright law and the public domain for years to come. Because it is so complicated and doesn’t include much flash (and perhaps because so much attention is going to health care, climate change, Jon & Kate, and other pressing issues of the day), the settlement has not been as widely debated as it should be. Second, it will be another experiment in using the tools of the interactive internet to promote true civic engagement and debate.

But whether it will work depends in large part on whether people participate, so go check it out. The links posted on the site’s Introduction are a good place to start.