The PTO’s Cambridge Roundtable: Read all about it

Public Roundtable Panel Discussion on Green Paper on Copyright etc. - Cambridge MA 2014And so it was that, as previously blogged, on June 25, 2014, I participating in the copyright statutory damages segment of the PTO’ / Department of Commerce / Internet Policy Task Force public roundtable discussion “Green Paper Roundtable” in Cambridge, Massachusetts.

It was great fun.  I learned a lot.  I made some new friends.  No, really.

And now you can read the transcript — click on the pic (or, all right, here).

Because this my blog I think I should excerpt some of the things I said.  Or, rather, because this is my blog I shall excerpt some of the things I said.  To wit (if you like, you may skip the quotation and scroll down for the Fun Fact):

[BEN] GOLANT [Attorney Advisor, USPTO]: Let’s get started with a question on individual file sharers, and it goes like this. Should individuals who are engaged in file sharing on a personal level with no profit-making motive or commercial element be treated differently than other entities for infringement award purposes? Why or why not? And as we did before, put up your tags, and we’ll call on you in order. So let’s see. Ron, and then David, and then George, and then Jodie. Go right ahead.

MR. COLEMAN: My view is that they should be treated differently. They should be treated in concert with the purpose of statutory damages, which is to provide a disincentive, which may very well be out of proportion to the actual damages suffered. We understand that works that are created by people who frequently don’t have resources to enforce their rights in copyright ought to be protected, and that’s the purpose of statutory damages as well as the attorneys’ fee provision of the Copyright Act.

On the other hand, it’s one thing to say that a college student is being treated in a – by having an award levied on him or her that is disproportionate to the damage to the copyright holder, in the case of a file sharing of music, for example, by imposing a tenfold, a hundredfold factor for file sharing. It’s another thing to say that someone should be put in the position of owing a nondischargeable judgment debt of hundreds of thousands of dollars, perhaps even millions of dollars, for personal file sharing.

If indeed it is the case that we’re talking about a person who is not part of some ring, part of some conspiracy to circumvent the Copyright Act, you can get a lot of bang for your buck and send a very strong message without ruining people’s lives for file sharing.

. . .

MR. GOLANT: [W] hat kind of factors should the courts examine in the context of individual file sharers? And in particular, perhaps, should the courts consider [ability] to pay as a consideration …?

MR. COLEMAN: I do have a couple [of] thoughts. I think it answers your question; it also addresses a point that George brought up, incidentally. You say what factors do courts consider, and the thing about statutory damages cases is, you can find cases that say that they should – because there is a punitive aspect of statutory damages, therefore courts should consider or instruct juries to consider the ability to pay, because what’s punitive for me and what’s punitive for some very wealthy person or some very poor person are three different things.

I think it might be worth taking a step back and asking ourselves, why are juries making these decisions? If anyone has ever tried a jury case involving intellectual property, the damages tend to be very often hard to assess. I’m talking about actual damages. Statutory damages is weird. When you first encounter it, you think, well, it’s punitive; it has all these equitable aspects to it. Why are juries the ones that are making these sort of what we would generally in litigation associate with judicial-type decisions regarding equity, regarding penalties?

Now, of course, juries do make verdicts in terms of punitive damages in other contexts; I recognize that. I think that’s a question that’s worth asking. . . .

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“Consumer fraud”: The new online speech control law?

Originally posted 2008-03-19 13:10:44. Republished by Blog Post Promoter

CONFUSION picense plateGet this:

New Jersey prosecutors have subpoenaed records of, a Web site that publishes anonymous, often malicious gossip about college students.

Language on the site ranges from catty to hateful and offensive. One thread, for example, on the “most overrated Princeton student” quickly dissolves into name-calling, homophobia and anti-Semitism.

JuicyCampus may be violating the state’s Consumer Fraud Act by suggesting that it doesn’t allow offensive material but providing no enforcement of that rule — and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday.

What a load of baloney! I have litigated the New Jersey Consumer Fraud Act frontwards, backwards and sideways, and believe me — this would be an unbelievable stretch. If Milgram’s interpretation were to fly, it would make that statute an omnibus be-a-good-person-online law with essentially no meaningful limitations. Not that I doubt that the Attorney General would love to have such power, but that would certainly be beyond anything contemplated by the New Jersey Legislature when it was passed.

Of course beyond what the Act itself provides, such an application of it would be unconstitutional too.  Unfortunately, neither of those are giant concerns to some judges in the Garden State.

By the way, this is not an endorsement of online defamation, especially when done anonymously. On the contrary. But please, let’s call a fraud a fraud.

UPDATE here from Overlawyered.

Blawg review

Originally posted 2007-07-23 13:42:18. Republished by Blog Post Promoter

It is to laugh.

Welcome back to winter, confusion

Originally posted 2006-11-26 11:56:07. Republished by Blog Post Promoter

Now that the Macy*s Thanksgiving Day Parade ® — yes, that’s a registered trademark — has completed its mawkish coup de grâce on the warm season, perhaps in return we will merit a thaw in the stream of IP-related news that has settled over my little piece of Gotham for the last week or so. Get on a warm sweater and hunker down for the big-dog weather, and welcome back to your cubicles and corner offices.

OFF TOPIC: Hey, wait a minute!

Originally posted 2006-03-24 17:02:04. Republished by Blog Post Promoter

(NB: I blogged this on the conservative political blog Judge and Jewry: Above the Din, which, when it’s not judicial confirmation season, gets a little less traffic than LOC. But it’s so terribly clever I had to repeat it here.)

Mickey Kaus writes, criticizing David Brooks for an expression of realpolitik on the immigration issue, “Brooks offers a noble reason of principle for sneering at the bill: He says it ‘will lose [Republicans] Florida and the Southwest for a generation.’ Under this moral standard Democrats would have opposed civil rights in the 1960s.”

Hey, wait a minute. Democrats did oppose civil rights in the 1960′s! It’s good to be in the bubble, I guess.

Another blow to religious freedom

Originally posted 2005-01-06 17:52:00. Republished by Blog Post Promoter

Did I tell you I’m a muckety-muck on the Religious Liberties Practice Group of the feared Federalist Society? Yeah, well. I am, and let me tell you, this is going to get us all burning up the phone lines on the private extension to John Ashcroft:

The drifter and self-proclaimed prophet accused of kidnapping Elizabeth Smart showed up to his competency hearing 90 minutes late Thursday and was kicked out after he started singing a Bible verse.

Exactly: In my faith, at least, showing up 90 minutes late is a religious obligation.

When do we start flexing those mandate muscles, Mr. President?

Cover me

Originally posted 2010-05-18 13:02:18. Republished by Blog Post Promoter

Photo Attorney Carolyn Wright writes:

Rebecca Tushnet over at the 43Blog reports on a recent case in New York where the court determined that the use of a woman’s photograph for a fiction book cover required a model release.  This ruling creates an anomaly with other NY cases where the court ruled that a photograph of a person used for a news article does not require a release.  The lesson?  It’s always safest to get a model release when using a photograph of a person.

Good pickup.  Good advice, too.  Although, now that I think about it, the facts in this case and the publishing sector in which it occurred sound eerily familiar to me

Magnesium ad nauseum

Originally posted 2009-04-27 07:57:57. Republished by Blog Post Promoter

Ryan Gile reports that it’s Coke vs. Pepsi on behalf of their sport-drink proxies, Gatorade and Powerade:

Coke’s advertising . . . makes the claim that Gatorade is “missing two electrolytes” – calcium and magnesium – that are found in Powerade. According to the complaint, the trace amounts of calcium and magnesium found in Powerade are so minute that it really has no nutritional benefit.

Pepsi’s causes of action are for false advertising, unfair competition, trademark dilution, deceptive trade practices, and injury to business reputation.

Believe it or not, the second paragraph refers to the lawsuit brought as a result of the allegations in the first paragraph.  Well, those claims do scan, mostly, but — what does advertising puffiness have to do with trademark dilution?  Hey, it’s in the magnesium!  Or not, it appears.

Underneath Their Robes

Originally posted 2005-03-23 08:59:00. Republished by Blog Post Promoter

Stumbled onto the fascinating and well-written Underneath Their Robes blog this morning, before the phones start ringing and those detestable faxes start slithering in. If you’re in federal court as often as we are you will want to bookmark this one.

DC Circuit: Press Not Shielded

Originally posted 2005-02-15 11:44:00. Republished by Blog Post Promoter

Another red hot AP story: The Circuit Court of Appeals for the D.C. Circuit has ruled that Time magazine’s Matthew Cooper and The New York Times’ Judith Miller have to testify before a federal grand jury about their confidential sources in connection with the Plame Affair:

“We agree with the District Court that there is no First Amendment privilege protecting the information sought,” Judge David B. Sentelle said in the ruling, which was unanimous.

That makes four of us. As I blogged last month, press shield laws, even where they are on the books — there isn’t a federal press shield law; the journalists here were asserting a constitutional right, not one based in legislation — are a bad idea. Journalists are no different from you and me. Not any more. Right, Jordan?

UPDATE: Welcome, fellow Instapundit readers. You too, Mom. Knew you’d hit my blog sooner or later. Via the How Appealling blog, linked to by Instapundit, here’s a link to the decision. My favorite part is exactly the point I have been making, to wit:

Appellants counter that Justice Powell could not have meant what the United States argues, as this would have given reporters no more protection than other citizens. However, they never make it clear why they are convinced that Justice Powell must have intended to give reporters more potection than other citizens. The Constitution protects all ctizens, and there is no reason to believe that Justice Powell intended to elevate the journalistic class above the rest. Cf. Branzburg at 690 (“the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.”).

“Could not have”!? Indeed.

UPDATE: Speaking of Instapundit, he adds this link to Volokh’s website, which focuses on one conconcurring opinion that asks the musical question we all have been asking: What about the blogs? — as well as another concurring opinion that endorses a common law-based press privilege.

UPDATE: Via Coyote Blog, see the full and definitive analysis here at Beldar.

Aereo, FilmOn, and the “Shimmer” of maybe-unlawfully-clever digital entertainment delivery

Those of you of a certain age will remember the classic SNL parody commercial for “New Shimmer“:

New Shimmer

It’s kind of the same thing with Aereo, isn’t it?  As I said in my now-legendary-in-my-own-mind multi-part post, every next judge presented with the relevant inquiries in the Aereo case — i.e., the application of terms in the Copyright Act to technological facts not remotely anticipated by its drafters — takes a different run at judicial legislating, while contemptuously dismissing the last guy to touch this digital hot potato as the dimmest of stooges.

Yes, it’s a lot like Shimmer.  Is this digital mini-stream time-place-concept-shifting business stuff a floor wax, or is it a dessert topping?  Or, as Chevy Chase urges, could it really be both?

The latest comes in via an email from Owen Phillips , who writes as follows:

Hi Ron, I like your blog! I work with FilmOn and you’ve probably seen it’s involved alongside Aereo in a major test of Copyright Office rules. Late last week the Office turned down Aereo’s request for Compulsory License under Section 111—provisionally. At the same time it put out a request to the public to comment on the issues surrounding these decisions over 30 day period.

I think your readers would be interested to hear about this—and we’d like to maximize the public’s right the be heard in all of this.

He included this Copyright Office link for public comment.  Why wouldn’t I post that?  It’s not a spam link or something.  It’s the government!  Why wouldn’t we want to help the gummint figure out whether FilmOn is a delicious addition to the end of a special meal, or the perfect way to keep that linoleum looking great?

Well, let’s see.  What do we know? We know that Owen really likes my blog.  We don’t dismiss that as flattery intended merely to smooth the way for my consideration of his pitch, for it is entirely credible that one would like my blog, and that one would say so, too, at the slightest provocation.

What’s FilmOn?  Go look for yourself at the FilmOn website.  And before we go any further with what Owen wants you to hear about, here’s what is, more precisely, going on with FilmOn — an item from  yesterday, July 21, 2014: Read More…