Saturday, March 29, 2008

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.


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


Justin Olbrantz (Quantam) said...

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

Exactly. In fact I've made several posts arguing this exact position on another forum over the last couple of weeks, the most recent being Thursday or Friday.

Unknown said...

Thanks for posting your notes, Ray.

This appears to be Prof. Tushnet's notes:

Last year's conference publication:

Jadeic said...


Many thanks for taking the time to give this feedback - we were all rooting for you back here in blogland.

I am sure that a full transcript of the proceedings will surface eventually but at a stiff price. I see from the Fordham site that last year's papers were published by Hart Publishing, based here in the UK at Oxford, at $200: this equates to £125 from Amazon. I will try to persuade my University tutor to add this to his library submission requests.

Again from the Fordham site, the quotes from Sir Hugh Laddie, 'big name IP experts came under sustained fire from their peers and were required to defend their IP beliefs' and from Marybeth Peters, 'a combination of candour and timeliness that is unrivalled in any other forum of its kind' must surely apply to your contributions - although I guess you may quibble with Professor Jeremy Phillips about 'the high quality of the speakers'.

Panel #1 - It seems that your demolition job should have held the floor in this debate. Can those really have been the only 'authorities' that Scheslinger was able to use as illustration? If so, that was a pretty poor showing. But then, what should we have expected if you choose to defend the indefensible? We are, indeed, all waiting Judge Karas's decision - just wish he would get a move on.

Panel #2

Your comment about Professor Hanson's stance on this issue says it all. It seems though that he and Doroshow were paddling a different canoe. Glad to see that Professor Black drew attention to the detrimental impact that the Thomas verdict in particular has had worldwide on the view of the US legal system vis-à-vis the issue of statutory damages.

It is interesting to note that there is no mention over at about Doroshow's contribution: worthy of at least a brief press statement I would have thought.

Panel #3

Less contentious by all accounts but it is good to get these points aired in such a prestigious forum.

Thanks again - and welcome back.


Anonymous said...

It might be useful to post a link to Mr. Schlesinger's bio on his employer's site.


raybeckerman said...

At a scholarly conference of this nature, it is important for one to speak honestly.

Mr. Doroshow engaged in advocacy, perhaps even absurd advocacy, but, to his credit, it was advocacy within the bounds or propriety. He
(a) avoided the topic he felt might hurt him, the statutory damages question, since he knows US law is out of whack; (b) emphasized the topic he liked talking about, the Jammie Thomas case, because there was no one in the room with knowledge of the facts sufficient to challenge him on what he was saying; and (c) although he gave his own spin, rather than an objective or balanced spin, on the Jammie Thomas evidence, advocates do that.

Mr. Schlesinger's presentation, on the other hand, was a deliberate misrepresentation of the state of US copyright law, which -- had it been believed, which I do not think it was -- would have given many of our visitors from other countries a false view of what is going on.

And Dave -- yes those were the only authorities Mr. Schlesinger cited on US law. But why should THAT surprise you? Those are the only "authorities" he has. What should surprise you is that, at a scholarly convocation of this nature, (1) he dared to state to those assembled that these "authorities" signify that the existence of a 'making available' right is well established in the United States, and (2) he made no mention at all of Atlantic v. Brennan, or of the Nimmer, Patry, and Goldstein treatises, all of which contain views to the contrary, or of the facts that Hotaling by its own terms deals only with the distribution of "unlawful" copies, and has been cited both for the rule (that there must be an actual dissemination of actual copies to the public) and for the exception it found in that case (that a library cannot avoid distribution liability which normally attach to its "lending" of admittedly "unlawful" copies present throughout its branches merely by omitting to keep circulation records).

Jadeic said...

On the whole then, Ray, do you think that, on those issues dear to your heart and conscience, conferences of this type (which I guess are few and far between) do bring a much needed clarity to the debate and can really impact on those who are able properly to shape new and improved legislation in the murky world of IP?

Jadeic said...

Thanks to Kim for the link to Schlesinger's bio [Note: there is an 'l' missing from the link shown in Kim's post]. It is interesting that at Fordham's, as reported on Professor Tushnet's blog (thanks for the link 'faro'), Professor Jane Ginsburg - under whom Michael Schlesinger studied copyright law at Columbia - seems to have a better grasp of the realities of interpretation of the existing statutes than her protégé. We would not all be here if the current law explicitly supported the RIAA interpretation. But the fact remains that it doesn't and that (among a myriad of other reasons) is why all these cases should fail.


raybeckerman said...

Dear Jadeic (Dave):

In my view it is of the essence of being a good lawyer to have an open mind and to keep on learning.

So, conferences which bring together scholars, students, and practitioners to engage in robust dialogue are healthy and beneficial to our profession.

Timothy Durnan said...

Thanks for taking the time to both participate in, and write about, this conference, Ray.