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March 20, 2007

Comments

i dont think you have it exactly right. we can't really judge the impact grokster had unless we understand the keen intracacies of the network architecture. remember, grokster got a quasi intent requirement into the ruling on 2 bases

(1) marketing materials encouraging illegal filesharing

(2) network architecture deliberately designed to prevent grokster from knowing what files were passing through servers when (that's what brought napster down)

i don't know what youtube does in terms of marketing, but in terms of the type of network design the court thought sufficient to prove a design-around knowledge theory of secondery liability in grokster - that just doesn't seem like a theory that would work with youtube.

by the way, johnny marr plays guitar on the new modest mouse album. yes, the man who ruined the smiths because he wouldn't shag morrissey rides again.

In the Netherlands making a copy for own use is legal (but breaking protection isn't). We pay copyrights on the media, so for every sold blank tape/cd money is paid to the copyright distributor.

That seemed like a good solution at the time, but now I pay copyright on the cd's I use to make backups or where I put my home video's on. At the same time we have discussions about wether the 'copyrights in price' principle should be introduced for mp3 players and harddiscs...

It also means that downloading is perfectly legal, but uploading (and thus peer-to-peer) isn't. I tend to buy dvd's, often in Canada because I hate the region price-tactics. Which means for instance that I have an offical copy of Veronica Mars, which will not let me skip their ads and their copyright infringement warning and which doesn't have subtitles. I also have that same season in 'home burned' version; no ads, no warnings *and* English subtitels. Weird world.

Shouldn't Viacom have to prove the intend, since they want to file suit?

Even I knew of Modest Mouse in the spring of 2005. It's currency value as a marker is nearly zero.

The bigger problem is the Court's cavalier attitude towards discovery, and unwillingness to entertain heightened pleading standards. You may be right that Grokster is a rope around the feet of a defendant, but it's http://supct.law.cornell.edu/supct/html/00-1853.ZO.html>Swierkiewicz that provides the weight to drag him/her/it under.

Even non-lawyers can get something from this case, by the way. Read the first two paragraphs of section II of the opinion, and think about what a light pleading burden the lower court had crafted: you had to show sufficient facts so that a disinterested reader, taking everything you say as true, would think that you'd been discriminated against. Not required, said the Court.

And this I just love:

Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56.

Publius doesn't make it clear, but one can rarely get summary judgment until discovery is complete.

kovarsky -- my reading of grokster was that most of it depending on #1, which created the intent of infringement. grokster isn't really a network in terms of servers, etc. -- it was p2p software. if they hadn't advertised it and done all the other stupid htings, I think the would technically pass the souter test.

Charley -- that's a good point. it's easier for Defendants than plaintiffs b/c they just to pick off the weakest link. but this test makes it really hard for there even to be a "link" that can be picked off pre-discovery

The argument is that YouTube not only facilitates third-party infringement, but that it actually infringes because the copyrighted material appears on its website, under its URLs, in its servers, etc. It’s an interesting argument conceptually, but one that judges would hopefully reject.

Putting aside the DMCA safe harbor and fair use defenses, YouTube pretty obviously are direct infringers. They are displaying copyrighted materials in violation of the copyrightholder's monopoly on the right to display or grant others the right to do so. There is law excusing service providers which display infringing material that is hosted someplace else, but that would not apply here.

Their defenses have to lie, it seems to me, on the DMCA safe harbor or fair use (but that will not protect against wholesale copying), but the DMCA requires them to take down infringing material of which they are made aware. Further, it is hard to see how the DMCA safe harbor will protect someone whose business plan is based on the use of infringing material, which is Viacom's claim. I do not know whether that can be proved, but YouTube is pretty obviously filled with videos which infringe copyrights, whether by wholesale copying of coyprighted materials or the use of copyrighted materials--video clips and background music, for example--in homemade videos. YouTube is cool, but that does not make it legal any more than Napster and Grokster were legal.

A substantive dispute, then a comment:

The beauty of things like motions to dismiss and summary judgment motions from a defendant’s perspective is that they can shut down cases before they get to the discovery stage -- the stage that corporate litigation associates come to know and love. If those motions fail though, and the parties proceed to discovery, it means that defendants have to search for, review, and produce potentially millions of sensitive business documents. It also means that top employees often get dragged to depositions. Barrels of fun, all around.

Motions to dismiss, yes. Summary judgment, not usually. I've been involved in one case that went out on summary judgment with only limited discovery, but summary judgment motions are usually filed at the conclusion of discovery -- not before. Indeed, a pre-discovery SJ motion is going to face a really tough Rule 56(f) affidavit -- assuming that the claims have any merit at all. (Federal Rule of Civil Procedure 56 governs summary judgment motions in Federal Court; Rule 56(f) is basically a way for a party to say that it can't respond to a summary judgment motion yet because it needs discovery to test the summary judgment motion's claims.)

Now, the comment:

I have pretty limited experience in copyright, but Souter's opinion in Grokster has always struck me as not too far from the standard for inducement of infringement in the patent case. I'd be curious if there are any patent attorneys reading this who know more about copyright law and can comment.

You are missing one thing here, though. At some point, Google *can't* settle. It needs a precedent, a case it can point to and say "see, this has already been decided - we have no bad intent. Just follow that decision." Now collateral estoppel won't be available to Google, but win one case, then win another with that judge citing the first case, and these lawsuits start to look like lost causes.

But if Google settles with Viacom, Warner Brothers will be next. And after WB, there are 500 more lawsuits, including those from people who genuinely do not feel harmed by YouTube.

But remember, kids, it's those evil, evil personal litigation folk ("trial lawyers") who abuse the power of the lawsuit and waste taxpayer dollars. *sigh*

Thanks for the discussion of the Grokster standard. It was actually an angle on the case that I didn't anticipate...which I suppose is why I'm not a legal analyst. At the time, I saw Grokster as a victory for common sense. I still do, in a lot of ways. It was, after all, was an attempt to smack down Grokster (which was clearly in the wrong) without eliminating the precedent set by Sony. Personally I was afraid that in their rush to condemn Grokster, the Court would end up screwing innovation big-time. (I mean, let's face it, many courts aren't exactly on the cutting edge of technology, and they don't have the same view of the internet and modern computer technology as those of us who practically breathe it.)

The other troublesome aspects of Grokster which could prove important here, are:
1. Part of the argument that Grokster was encouraging infringement was based on the notion that their per-click ad scheme implied that they were deliberately piggybacking on copyrighted material to make a profit. This is an argument that will be used against Youtube.
2. The Court did not affirm the 9th Circuit's opinion that Grokster's failure to filter out copyrighted materials was irrelevent because it had no duty to filter, thereby leaving the door open for Viacom to raise this claim. I know that one of the things they are demanding is filtering...in principle I agree that asking Google to take proactive steps to block copyrighted material is a good idea, but their failure to do this from the outset shouldn't be a building block in the lawsuit against them.

Frankly Breyer's concurrence was my favorite part of Grokster; I can't stand the RIAA, the MPAA, or any of the hysterical music/movie industry bullshit. To me this Youtube lawsuit is a perfect example of what big music/video corps are all about: control. Youtube has undeniably been put to infringing uses. But unlike Grokster, it *does* have significant non-infringing uses. I do not believe Youtube or Google have encouraged copyright violations on the service. But I also think that either way, Youtube is exactly the sort of technology that Sony should continue to protect- a technology/service with significant non-infringing use, that has proved a drastic advance and a benefit to citizens and to commerce; Youtube pretty much revolutionized online video delivery. It used to be an enormous pain in the ass to try to share your videos with people.

Further, Viacom's 1 billion dollar claim is absolutely ludicrous...there is no way they have lost that much money from people making anime music videos or posting clips from tv shows. The high-stakes claim is the clearest evidence of their intent to suck money out of Google's deep pockets.

Like you say, however, given those deep pockets the whole thing is likely to work out in settlement...unless Google deems it cheaper to go to discovery and hash the whole thing out in court, which is unlikely given the cost of discovery. It all depends on what Viacom is REALLY asking for, and what Google is prepared to give up.

I have nothing interesting to add; I just wanted to say that I love this post, since I learned something that I knew nothing about before I read it. Thanks.

Further, Viacom's 1 billion dollar claim is absolutely ludicrous...there is no way they have lost that much money from people making anime music videos or posting clips from tv shows. The high-stakes claim is the clearest evidence of their intent to suck money out of Google's deep pockets.

they're likely claiming statutory damages, which can be much higher than actual profit loss (which, as you note, is likely to be small)

I think Youtube is definitely a primary infringer. They aren't facilitating the acquistion of copyrighted material, sony and grokster, they are broadcasting it. They aren't just storing it or linking to it, they are providing the software to upload it and they provide the software to view it. Youtube is a primary infringer.

If you download a pirated mp3 through grokster and I listen to it who is the primary infringer? You

If you send me a link to a pirated song on a pirate music site and I download it who are the primary infringers? Me and the pirate site

If that pirate site streams and sells ads and i listen to it through their stream who is the primary infringer? I'd say the pirate site.

You are asking the court to regard the viewing or listening as the infringing act. That makes little sense to me. The act is the broadcasting or possessing.

One tactic that is sometimes used is to counter litigate to put the same discovery costs on the litigating party. Is there any opportunity for Google to do this ?

well, but maybe that's an outdated view of websites in that youtube is in a somewhat different paradigm. yes, the information in on their servers, etc., but you could conceptualize youtube as a neutral technology that allows people to infringe just like the vcr.

But the general point is correct -- fair use will much more important in this context than in the grokster one

You are asking the court to regard the viewing or listening as the infringing act. That makes little sense to me. The act is the broadcasting or possessing.

Actually possession is not actionable; a company can sue you for uploading something copyrighted (because that counts as "distribution," which is a protected right of copyright holders) but not for downloading something.

But I grasp your argument that Youtube is a primary infringer. It's a rational argument, but I think the argument that Youtube is a neutral technology is just as valid.

you could conceptualize youtube as a neutral technology that allows people to infringe just like the vcr

You could, but that would require you to ignore the reality that YouTube is a commercial enterprise that makes its money--in part--by hosting and displaying copyrighted material without the copyright owner's permission. That's just plain old copyright infringement. The DMCA safe harbor and fair use might protect some of what they do, but at the end of the day, I cannot imagine any court ever agreeing that a YouTube can knowingly (that is, after it has received notice under the DMCA) display full copies of copyrighted material like TV broadcasts. There is just no legal theory under which that makes sense.

Importantly, this is not a suit to shut down YouTube, it is a suit by a copyrightholder to make YouTube stop displaying that copyright holder's copyrighted material, and to pay damages for having done so in the past.

You could, but that would require you to ignore the reality that YouTube is a commercial enterprise that makes its money--in part--by hosting and displaying copyrighted material without the copyright owner's permission.

Baloney. And shifting goalposts. Viacom has no chance in heck of proving that Viacom's business plan in any way involved making money off copyrighted material, deliberately. YouTube is chock full of user-produced, home-baked content. It constitutes the majority of what they do. And the vastly ironic part of the lawsuit is that YouTube has already been removing copyrighted material.

Under the DCMA, places like YouTube are only required to remove material after being notified. Viacom is trying to establish google's liability for not taking media down before being notified - a liability that doesn't legally exist in the DCMA or anywhere else.

So, to recap:

1) YouTube is not putting copyrighted material up on its own
2)YouTube meets the Grokster test: it's not encouraging people to put up copyrighted material
3) YouTube's business model does not involve or require copyrighted material
4) YouTube is complying with DMCA requirements

Unless the entirety of the claim is built around times from years ago, when laxer attitudes re copyright prevailed generally, the case is legal extortion.

Idealist's comments sound rather scripted.

I cannot imagine any court ever agreeing that a YouTube can knowingly (that is, after it has received notice under the DMCA) display full copies of copyrighted material like TV broadcasts.

But they don't. Youtube has a history of immediately removing copyrighted material when asked to do so. The problem is that the nature of the service is such that it's relatively easy for someone else (or the same person under another name, or whatever) to upload the material again after it's been removed.

This is why the open question of whether or not there is a duty to filter is going to be important in this case (IMO, anyway). If Youtube is complying with its duty to remove copyright violations when they are reported, can it be held liable for those infringments? Viacom says that Youtube isn't doing enough to prevent such violations, and that anyway it ought to compensate them for past violations. I tend to agree with the opposing argument, which is that it is the duty of the copyright holders to police their own copyrights, not Youtube's, since the law (including the DMCA) places this burden squarely on the copyright holder.

The ABA Journal ran an article on this that I really enjoyed, but unfortunately it doesn't seem to be up on their website so I can't link it.

Baloney.

I was actually responding to the argument that we should reconceive YouTube as "neutral technology" so that it could never be liable for direct infringement.

Idealist's comments sound rather scripted.

This sounds so clever, but I'm not sure what it really means. Do you think I am a paid plant from Viacom? Or is "scripted" a codeword for something else?

I actually read Cuban's blog like a day before the Viacom suit and he mentions subpoenaing "gootube" for a list of users that uploaded his movies. Its an interesting http://www.blogmaverick.com/2007/03/08/supoenas-and-gootube/> post:
http://www.blogmaverick.com/2007/03/08/supoenas-and-gootube/

Also his http://www.blogmaverick.com/2007/03/13/you-go-viacom/>post on the Viacom suit specifically is pretty good, see specifically the part about searches:
http://www.blogmaverick.com/2007/03/13/you-go-viacom/

Ideally, federal courts will hold these types of complaints to a higher pleading standard (i.e., make them list real facts – not conclusory assertions), but the truth is that the Grokster standard makes it far more difficult to avoid discovery.

I don't understand where courts would get the authority, out of a clear blue sky, to impose a higher pleading standard. I agree that a higher pleading standard would be a good idea - so plaintiffs can't just say "we think you're out to infringe our works, show us all your emails!" - but I would think the legislature would have to impose it, as with the PSLRA.

CharleyCarp and Von raise a vital point.

I take this line from Swierkiewicz as an invitation to litigators AND COURTS to use Rule 56 more freely:
Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56.

Specifically, it seems to me that the Supreme Court here is practically begging lower court judges to segregate out dispositive issues amenable to speedy and limited discovery and hearing. Let me unpack this for the non-lawyers in the thread:

As Publius correctly says, the current discovery rules are normally used to abuse the system. Or to put it another way, using the threat of discovery to force settlement IS the system. And it's the only system we have, so judges have learned to encourage it. Judges have to -- otherwise the cases wouldn't settle and they'd have to try them, which they don't have time for because we haven't increased court budgets to match the increase in litigation in the last 50 years. And in Swierkiewicz, the Supreme Court re-affirmed a principle that closes off one of the few ways judges have of cutting off cases without discovery: the Court made it clear, not for the first time, that most cases cannot be dismissed in advance of facts.

But, said the Court, this does not mean that everything has to be handled in the dumb, wasteful, harmful, inefficient way Publius described. Use Rule 56, said the Court.

Rule 56 allows a defendant (or a plaintiff) to move for summary judgment -- judgment in advance of trial. The interesting thing is, you can make this motion at a very early stage. The other party then has to interpose a "56(f) affidavit" stating that they cannot respond to the motion without doing discovery -- and they must specify what sorts of facts they need to find out to respond to this motion.

Now, here is where litigants and courts can save a lot of trouble: the party moving for summary judgment can frame its motion narrowly. It can say, in essence: if the facts are such and such, then no matter what else is true in this case, the other side loses. We think the facts ARE such and such, and here is our evidence. Then, as soon as the other side files its 56(f) affidavit, they can move to limit discovery to the points raised in that affidavit. The trial court has the authority under 56(f) to do that. It can even, if it chooses, order a limited hearing, or even a jury trial, just on those issues.

There are some big problems with this approach. From the litigant's point of view, it's a huge risk. If the limited summary judgment motion fails, you've damaged your whole case. You've lost that fact issue forever, and even on other fact issues, you will be looked at more skeptically -- you were wrong or deceptive once, and you probably took your best shot first, so the court will expect your later motions to be weaker. Plus, you've just wasted a lot of time and money -- all the depositions will have to be re-done for all the other issues, etc. This is a concern for judges too.

But judges can often smell a bad case when it's in front of them. If it seems likely that a simple fact issue will decide the case, judges should get to that point quickly. And litigants should point them towards it.

Sorry, I overstated a little: you don't entirely lose your fact issue when you lose the summary judgment motion. You've just lost the ability to say that there is no material dispute as to the fact. A judge or jury could still find after a full hearing that the balance of evidence favors you as to that fact issue.

Justin, why wouldn't collateral estoppel be available? It's nonmutual, but it's defensive.

Given that we're talking about *google* here it may actually be to their advantage to litigate, no?

Also, it seems like the standard of "affirmative steps to encourage infringement" requires some interaction with the public to actually encourage the infringement....You could also argue that direct steps to discourage infringement get you off the hook.

YouTube may be a direct violator anyway, but I think a judge might not be so sympathetic to saying that, e.g. Microsoft has to conduct an email search to prove that it didn't distribute XP for the sake of encouraging copyright violation.

As to discovery in general, my firm does a lot of plaintiff's work and discovery is our friend...less to impose costs (which are expensive for plaintiffs too--less expensive but a lot of plaintiff's firms can afford it less) than to actually *find stuff out*. In a lot of cases the defendants really do have custody of the evidence. (I think you should have to put actual facts in your complaint, however).

Trilobite

Four comments.

First:

Trilobite: There are some big problems with this approach. From the litigant's point of view, it's a huge risk. If the limited summary judgment motion fails, you've damaged your whole case. You've lost that fact issue forever ....

Although you've corrected yourself in a subsequent post, it bears noting again that this isn't correct unless your opponent files a cross-motion for summary judgment -- which it probably won't, since this means that it can't also file a Rule 56(f) affidavit.

Second:

Trilobite and Justin: Collateral estoppel generally requires a final judgment on the merits in which all appeals have been either exhausted or abandoned. It can be used only against a party and/or its privities (even in its nonmutual defensive variety, which is not universally accepted). It's not clear to me how a finding in Google's favor operates as collateral estoppel barring any future litigation by another service provider not in privity with Viacom.

Third.

Trilobite discusses the possibility that a defendant who moves for summary judgment early can use a defending Rule 56(f) affidavit from the plaintiff (if offered) to narrow the scope of discovery in the case. This can happen, particularly if the issue is discrete, your motion is strong, and you have a judge who is comfortable granting summary judgment motions (not all are). Many courts, however, will prefer to put no limits on discovery but simply allow discovery and your summary judgment motion proceed on the two separate tracks. The result is that you've increased the costs of litigation in the short term. Lesson: Know your judge and the strength of your argument.

Fourth.

Although I appreciate Katherine's point about needing to discover facts, but do want to note that every case is different. You will find both worthy examples of discovery and examples that are simply ridiculous. Also, it's almost invariable that if the defendant is truly the repository of documents, the costs of discovery will be primarily bourne by the defendants. Plaintiffs are not stupid about this fact, and will use it to their advantage.

I love terms like "Collateral estoppel".

Just wanted to balance out all the fascinating legal discussions by providing the uninformed and ignorant perspective ;)

Here's sort of an ancillary hypothetical to the cost of discovery question:

You're an attorney defending your client (let's say it's a sophisticated client such that it has its own in house counsel) in state court. You have a colorable argument to remove the case to federal court - its supported by a federal district court opinion in another district - and so you can file a motion to remove the case without you being subject to sanctions.

However, the posture of the case is such that (a) you know you'll lose the motion; (b) you know it will result in an opinion saying nasty things about you; and (c) you know your client will be forced to pay the other side's costs. Do you file the motion anyway?

I love terms like "Collateral estoppel".

I always liked the "officious intermeddler" and the "common scold."

(b) should be "saying nast things about your client"

I love terms like "Collateral estoppel".

Just wanted to balance out all the fascinating legal discussions by providing the uninformed and ignorant perspective ;)
My thoughts exactly, Hilzoy. I actually thought it was a typo the first time someone mentioned it, then I realized that even switching a couple letters around didn't yield anything I recognized as a word.

the contents of this thread explain why I'm a land use / water rights attorney. I go to court on writs of mandate only with a defined administrative record.

Discovery? [shudder.]

that said, what i find notable is the way that IP lawyers are forced into Delphinic interpretations of SupCt opinions much in the same way that land use lawyers read SupCt opinions on regulatory takings.

I'm not sure why the doctrine of collateral estoppel would apply after a 56(f) hearing. What is the collateral proceeding? I've heard some people use the expresssion law of the case, but that's not right either because the matter hasn't been determined by an appellate court. It's just an interim ruling.

Another Youtube copyright infringement http://nfl.aolsportsblog.com/2007/03/19/is-the-nfl-abusing-copyright-law/>story, this one is about a law professor using the DMCA against the NFL.
http://nfl.aolsportsblog.com/2007/03/19/is-the-nfl-abusing-copyright-law/

The story looked interesting, crack -- at least, what I could manage to read after the expanding Flash ads got done obliterating the first part of it.

I love terms like "Collateral estoppel".

Just wanted to balance out all the fascinating legal discussions by providing the uninformed and ignorant perspective ;)

My thoughts exactly, Hilzoy. I actually thought it was a typo the first time someone mentioned it, then I realized that even switching a couple letters around didn't yield anything I recognized as a word.

Sigh. I know. But there's a movement afoot to get rid of the terms "collateral estoppel" and "res judicata" -- the latter of which sometimes means collateral estoppel and sometimes does not -- and replace them with terms that actually describe what's going on:

1. Claim preclusion: after you've had a chance to litigate a legal claim to final judgment, you are precluded from filing suit on the same claim again. (This is what has classically been referred to as "res judicata".)

2. Issue preclusion: after you've had a chance to litigate an issue that is part of a legal claim, you are precluded from relitigating that same issue in a different proceeding. ("Collateral estoppel," which is sometimes considered to be a specific type of "res judicata.")

Somehow, however, I don't think that we've made it to plain English.

Francis --

I'm not sure why the doctrine of collateral estoppel would apply after a 56(f) hearing.

Although I agree that collateral estoppel is a red herring in all this, to be fair, Trilobite and Justin were thinking of the need for Google to litigate to a final judgment. (See Justin's post up near the top.) The Rule 56(f) stuff is kinda on a different track.

It's all about censorship. After all, censorship is becoming America's favorite past-time. The US gov't (and their corporate friends), already detain protesters, ban books like "America Deceived" America Deceived (book) from Wiki, and fire 21-year tenured, BYU physics professor Steven Jones because he proved explosives, thermite in particular, took down the WTC buildings. YouTube is the latest (and most expensive) victim.

I'd never heard of Modest Mouse until this post...

Just to make it abundantly clear for the non-lawyers, Publius' (excellent) point can be boiled down to this:

1. Suing is often more about extracting money via settlement than going to trial and winning.

2. In layman's terms, Grokster makes it far easier to get this kind of claim, *especially* with a suitably massive amount of damages, into court in the first place, and to keep it there long enough to actually extract $.

3. Viacom's case is probably just the first in a long string which will be brought seeking get a hand in the Google cookie jar.

4. Responding to discovery requests sucks, ("Please produce every document relating in any way or calculated to lead to documents relating in any way to any claim or defense raised in this action. If you don't produce every document you have and in fact create new documents to give to us, we will move for sanctions, your client will lose and you will be disbarred. After you default on your student loan payments, you will be sent to the workhouse. Have a nice day."), which is why I'm posting this, instead of working on responding to discovery requests.

LOL, Pooh! Yeah, that.

One small caveat: most judges, even magistrates, have little patience for motions for sanction for failure to respond, unless the failure was egregious, open, and continued. They'll warn a litigant to produce or else, but the "or else" seldom eventuates. Unlike certain political commentators, judges grasp that boxes of documents do sometimes just go missing. So, yes, doc review sucks, but you're unlikely to lose over an honest mistake.

I like motions for partial summary judgment, or early motions of an indisputably missing essential fact. The trouble is, you're often not likely to get an order, and your typical scheduling order is going to allow discovery on every topic to be ongoing while the motion is pending.

I agree that it's not really law of the case, or collatreal estoppel. However, if a judge adopts a legal opinion on a particular issue early in the case, she/he is pretty likely to stick with it as the case moves. Unless convinced that it's a huge mistake. Any other way of doing it would make all rulings always fair game for reconsideration.

This all seems to me to also be another block in the continuing move by large corporate copyright holders -- Disney, Viacom, Sony, etc. -- to eliminate the concepts of fair use and public domain altogether. Between the Sony Bono Copyright Extension Until Infinity Act* and the failure of other IP interests to distinguish between outright infringement (e.g., uploading an entire movie or TV show) and the kind of fair use that either results in a new creative work or benefits the copyright holder (e.g., uploading a 20-second clip from "Family Guy" or "TRL"), these parties seem determined to destroy the common culture and its progress. Culture only advances when there's a rich public domain from which to draw combined with liberal fair use policies.


*Particularly egregious because it was written and passed almost entirely on behalf of Disney, who became famous, post-"Snow White," almost entirely on the basis of works that were in the public domain.

"Suing is often more about extracting money via settlement than going to trial and winning."

Just want to re-emphasize this. "Often more" here should be read at somewhere on the order of 70-80% if you count all the ancillary defendants in many cases, and that may well be generously low.

So here's a random point, and a random question, for the IP types out there. This first came up with MP3s and now with videos: while I realize that there is an abstract right to control one's intellectual property and to receive the benefits thereof, what if no benefits were going to be received anyway? Is it really a sin (or a crime) to procure in that case?

Let me give a specific example: when MP3s first hit the scene in the late 90s, my knowledge of popular music was limited at best. It was only due to MP3s that I became aware of certain bands and hence aware enough to actually purchase their music legitimately. Had I not been afforded the opportunity to listen to that music for free -- which opportunity, in any meaningful sense, was only available in that way -- I would never have found these bands, and I certainly wouldn't have plunked $16 down to buy their albums upon release.

[And yes, I realize I just admitted to copyright violation. Anyone who wishes to sue me for the more-or-less minimum wage I currently make is welcome to try.]

The same, it seems to me, is true -- of me -- for other artistic media. I'm simply not the kind of person who is going to purchase something genuinely unseen or unheard, but who will once I have an established (audience) relationship with the artist. In fact, most of the luxury purchases I've made that weren't comestibles have been from artistic endeavours that I was introduced to in a perhaps-less-than-copyright-non-infringing way. The only place where I can see this having a tangible effect on the artists would be for television... but I'm not a Nielsen household so my eyeballs aren't counted anyway, more's the pity.

Now I can understand that turning this attitude into policy, let alone law, would be problematic in the extreme, but I'm curious: is it really -- in an philosophical sense -- a crime when you haven't actually taken anything from anyone? Is it really a crime when, upon acquiring something for free, you end up spending money on further things that you simply wouldn't have acquired in the first place?

And if your answer is no, as mine often is, what can or should be done to change the law in order to recognize this?

To the topic at hand, btw, it doesn't strike me that YouTube is committing a crime precisely because, as noted above, they are extremely vigilant about ensuring that their medium is not used for copyright infringement. That users routinely commit such violations doesn't seem to enter into YouTube's culpability; after all, YouTube doesn't profit from the sale of such infringements, it makes its profit by legitimate advertisement which sometimes occurs in the context of user-instigated infringements.

I find Sebastian's comment fascinating. I'm involved in litigation pretty much full time, and have been for 16 years. Nearly always on the defense side, although sometimes a plaintiff in a business dispute. Over all that time, I can count on my hands the number of parties added to a case I've been involved in without any justification. I'm not sure I need both hands to count the number of suits where plaintiffs expected to be paid although their claims had no merit whatsoever.

Now to be sure, everyone expects that the case will settle rather than go to trial. That said, though, I have never had a client who filed suit (or a counterclaim) without believing that we would prevail,* and very very rarely had an opponent who thought my client would simply pay blackmail.

I'd be interested to know what the personal experience of other members of the ObWi Bar Ass'n, particularly outside counsel, is like in this regard.


* I did have one, a Californian, who brought up the idea, about 12 years ago. I said we don't do that, and he went away. And didn't file his suit.

I'm curious whether any legal types think that it is (legally) relevant to Viacom's case that the quality of the clips uploaded to YouTube is extremely poor. We're talking about postage-stamp-sized videos which, if blown up to full TV size, would be unwatchable. (Not to mention that YouTube imposes a pretty short limit on the length of videos you can upload.) From the law's point of view, is there no difference between a poor, low-quality copy that nobody could mistake for the real thing and a faithful copy that could be redistributed as a substitute for the original?

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