Report to my readers on the Fordham Law IP Conference

Report to my readers on my outing to the Intellectual Property Law & Policy conference at Fordham University Law School on March 28th:

I participated in 3 panels. I wasn't in a position to take detailed notes, so I'll just mention some of the highlights.

Panel #1- "Making available". The heading was: "What is the effect in the U.S. of the “making available” right? Comparative approaches in Asia, interpreting the making available right, and also the intersection with secondary liability.

The title alone gives away the bias of its author. It assumes there is a "making available" right in the United States, which even the RIAA knows is not so -- as evidenced by its removal of that theory from its complaints once Judge Brewster held that its complaint fails to state a claim in Interscope v. Rodriguez.

The keynote speaker, Michael Scheslinger, from the Washington, D.C., office of Greenberg Traurig LLP, gave an extremely misleading, and I think insincere, talk in which he stated that the existence of a "making available" right is settled law in the United States. The only authorities he had for this statement were: (1) a pro se case in which the issue was never briefed (DePietro), (2) a very weakly defended case in which the issue was never briefed (the Texas case "Atlantic v. Anderson", not to be confused with the Oregon "Atlantic v. Andersen"), (3) the jury instruction in the Thomas case (which is NOT a judicial precedent), and (4) the Hotaling case which -- if you have read the case, or even if you have only read the quotations in this blog's sidebar -- you know does not stand for the proposition that merely "making available" is a distribution. He of course omitted to mention the decision of the District of Connecticut, Atlantic v. Brennan, specifically holding that there is no such thing as "making available".

Of course when I was called on, I corrected him. And not delicately. I advised the audience that what they had heard from Mr. Schlesinger was highly misleading, and that it was clear that Mr. Schlesinger derives his revenue from content owners. I went into a more accurate description of the actual caselaw and of the important pending cases, Elektra v. Barker, Warner v. Cassin, and Atlantic v. Howell. It seemed that everyone, even including Mr. Schlesinger, was very familiar with Elektra v. Barker, and awaiting Judge Karas's decision.

Panel #2-"Statutory damages". The heading was "Should new limits be placed upon statutory damages? Did the supporters of P2P software and the individual defendants miscalculate the reaction of juries? A review of case law, e. g., Capitol Records v. Thomas, (D. Minn. 2007).

Here again the heading gives away the bias of its author.

The keynote speaker, Kenneth Doroshow, Senior Vice President of Litigation and Legal Affairs of the RIAA, chose to speak almost exclusively about the Jammie Thomas case, going into detail with his spin on the facts. He also gave his opinion as to why statutory damages should not be subject to due process scrutiny as jury trial punitive damages awards are. The host and moderator, Prof. Hugh Hansen, implied that constitutionality of statutory damages is not a serious issue.

When I spoke I tried to address the primary topic, statutory damages, rather than the facts of the Thomas case. I pointed out that the U.S. Court of Appeals for the Second Circuit, the U.S. District Court for the Eastern District of New York, and the U.S. District Court for the Northern District of California, did think constitutionality of disproportionate statutory damages was indeed a serious issue; that several excellent law review articles had taken the position that it was a serious issue; and that there was not a single authority anywhere to the effect that it was not. I also pointed out that the verdict was about 23,000 times the actual damage in the Thomas case, and that the RIAA had been seeking from 2,000 times to 450,000 times the actual damage.

I then went on to point out that I would not even be able to have a conversation with anyone who thinks a $220,000 verdict -- against $8 in actual damages -- is fair, because their values are too far removed from mine. And I pointed out that the verdict had made our country a laughingstock throughout the world.

Prof. Pamela Samuelson, of the University of California Law School, in Berkeley, said that when the statutory damages were written into the statute, Congress did not contemplate the type of infringements that are being sued for today, with 99 cent song files on p2p file sharing; that statutory damages were meant to be primarily compensatory where it is too hard to prove damage, and were not intended to be "punitive" and to make examples of people; she felt that the situation has gotten out of hand and that the RIAA's arguments as to why statutory damages exist, are wrong.

Prof. Peter Black, of the Queensland University of Technology, in Brisbane, Australia, said that he would like to confirm the accuracy of my statement that the Jammie Thomas verdict has made the United States a laughingstock in other countries.

Panel #3- "Privacy in Disclosure of Identities" The topic was "What role should privacy play in learning the identities of downloaders? A look at recent case law in the U.S. and EU (e.g. Promusicae in ECJ)

Here the title was not inflammatory, nor was the speech given by the keynote speaker,
Dr. Volker Kitz, of the Max Planck Institute for Intellectual Property, Munich / HOECKER attorneys, Cologne. The speech was informative, and basically the speaker and all of the panelists each told a bit of what he or she had to say about the balance between subscribers right to privacy, and the rights of copyright owners to find out the identity of infringers.

My discussion mentioned the Canadian BMG v. Does and the Netherlands Foundation v. UPC Nederland, cases, which stopped the RIAA's counterparts in those countries, not based upon an absolute refusal to disclose the information, but based upon those Courts' recognition of the paucity of the RIAA's "evidence", and contrasted them with the United States, where the RIAA -- by its tactic of using ex parte proceedings, and the unfortunate signing of those orders by many judges -- has managed to avoid judicial scrutiny of the privacy issue. I mentioned that there are numerous statutes respecting privacy of subscribers, covering the 3 basic types of ISP's: (a) colleges and universities, (b) commercial telephone companies, and (c) commercial cable companies. I also mentioned Interscope v. Does 1-7, where the judge on his own realized that the disclosure application was incorrect, Arista v. Does 1-17 where the Oregon Attorney General has brought to the Court's attention the privacy statutes that the ex parte discovery order is asking the University to violate, and Capitol v. Does 1-16 and Arista v. Does 1-22, where the judges recognized that these proceedings should not be ex parte.

###

Many readers have asked whether transcripts, videos, or audio recordings are available. I would imagine that Fordham Law School will be preparing audio and video materials, but that they will be sold at fairly high prices, and will not be available for broadcast. I would also imagine that a transcript might appear in one of the Law School's journals. In any event, I will pass along your inquiries and get answers to them.

-R.B.

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property