Friday, September 30, 2011
The satirical news outlet The Onion has taken some flak for its story that Congress had taken some schoolchildren hostage yesterday. The Onion continued its coverage of the hostage situation with news that negotiations had "stalled" over the $12 trillion ransom request. Lawyers who do not represent The Onion opine that the website's silliness is protected by the First Amendment.
A federal district court has dismissed a plaintiff's claim that the parody of a music video in an episode of use of a song in an episode of the popular show "South Park" constitutes infringement. Brownmark Films had sued Comedy Partners over its use of the music video "What What In the Butt" in the episode "Canada on Strike," and Comedy Partners had defended by arguing that the parody was fair use.
Said the court,
The fair use doctrine allows for a "limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent." ...The rationale behind the doctrine is that unauthorized uses of a copyright are permissible when they "advance the underlying constitutional purpose of copyright law: to promote broad public availability of literature, music, and other forms of creative arts." Bruce P. Keller and Jeffrey P. Cunard, Copyright law: a practitioner's guide § 8.3 (2010). Specifically, 17 U.S.C. § 107, which codifies common law fair use principles, provides that the "fair use of a copyrighted work" for such purposes as "criticism" and "comment" "is not an infringement of a copyright." Moreover, the statute provides four guideposts by which to determine whether a particular use is "fair": (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Id. However, as the Seventh Circuit has cautioned, "the four factors that Congress listed when it wrote a fair use defense . . . into the Copyright Act . . . are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically." ...Ultimately, the "fair use copier must copy no more than is reasonably necessary . . . to enable him to pursue an aim that the law recognizes as proper," such as "the aim of criticizing the copyrighted work effectively."... Moreover, application of the fair use doctrine requires a case-by-case analysis. ...With this framework for evaluating the fair use issue in mind, the court turns to the two works in question.
Here, applying the statutory factors from Section 107 of the Copyright Act and the principles behind the fair use doctrine, the court readily concludes that the defendants use of the music video in the South Park episode "Canada on Strike" was "fair." One only needs to take a fleeting glance at the South Park episode to gather the "purpose and character" of the use of the WWITB video in the episode in question. The defendants used parts of the WWITB video to lampoon the recent craze in our society of watching video clips on the internet that are — to be kind — of rather low artistic sophistication and quality. The South Park episode "transforms" the original piece by doing the seemingly impossible — making the WWITB video even more absurd by replacing the African American male singer with a naive and innocent nine-year old boy dressed in adorable outfits. The episode then showcases the inanity of the "viral video" craze, by having the South Park fourth graders' version of the WWITB video "go viral," seemingly the natural consequence of merely posting a video on the internet. More broadly, the South Park episode, with its use of the WWITB video, becomes a means to comment on the ultimate value of viral YouTube clips, as the main characters discover that while society is willing to watch absurd video clips on the internet, our society simultaneous assigns little monetary value to such works. The South Park "take" on the WWITB video is truly transformative, in that it takes the original work and uses parts of the video to not only poke fun at the original, but also to comment on a bizarre social trend, solidifying the work as a classic parody. ... Such use of a copyrighted work, which uses the work and transforms it for another purpose, lends this court to conclude that the defendants' use is fair. ...
Beyond the "purpose and nature of the work" statutory factor, the court also looks to the remaining issues raised in Section 107 of the Copyright Act. The "nature" of the copyrighted work factor is not particularly helpful to the court, however: while fair use is more difficult to establish when a core work is copied as opposed to when an infringer takes material that is only marginally within copyright protection, the "nature" of the copyright in question does not help this court assess whether South Park's parody is a fair use, because "parodies almost invariably copy publicly known, expressive works." ... Additionally, the court notes that the use of the copyrighted work in the South Park episode was relatively insubstantial. The defendants' work did not mirror the original WWITB video — indeed, the derivative work was a cartoon of a nine year old boy repeating just enough lines WWITB to conjure up the original work. Notably, the WWITB snippet in the South Park episode was less than a third of the length of the original work. The use of the imagery and words of the original work was all but the minimum needed by the defendants to accomplish their goal of commenting on a social phenomenon. ...Finally, there is little risk that derivative work in question would somehow usurp the market demand for the original: the South Park episode lampoons viral video crazes, while the WWITB video is the epitome of a clip that fuels such crazes. ...Looking at the Section 107 factors together, keeping in mind the purposes of the fair use doctrine, the court can easily conclude that South Park's parody of the WWITB video falls squarely within the fair use protections afforded by the Copyright Act. If the use by the defendants of the copyrighted work is somehow "unfair," it remains at the wholly speculative level, leaving the court with no choice but to grant the defendants' motion to dismiss.
Finally, the court concludes that the dismissal ought be with prejudice. Twice the plaintiff has filed a complaint in this court based on the use of the copyrighted work in an episode of South Park. (Docket #1, #6). Moreover, under recent changes to Fed. R. Civ. P. 15(a), the plaintiff had an additional opportunity to file a pleading to cure the errors raised by the motion to dismiss — in this case, the plaintiff could have filed a complaint that raised infringement claims outside of the context of the use of the copyrighted work in the production and dissemination of the South Park episode "Canada on Strike." Despite these opportunities to resolve rather glaring problems with the substance of the underlying dispute, the plaintiff has looked elsewhere and instead filed briefs that wholly ignored the central issue of this litigation, fair use. Such behavior is indicative of the efficacy of this litigation, which rightfully ends now.
The case is Brownmark Films v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684; Copy. L. Rep. (CCH) P30,106.
Thursday, September 29, 2011
Omer Tene, College of Management, School of Law, Israel, and Jules Polonetsky, Future of Privacy Forum, have published To Track or 'Do Not Track': Advancing Transparency and Individual Control in Online Behavioral Advertising. Here is the abstract.
The past decade has seen a proliferation of online data collection, processing, analysis and storage capacities leading businesses to employ increasingly sophisticated technologies to track and profile individual users. The use of online behavioral tracking for advertising purposes has drawn criticism from journalists, privacy advocates and regulators. Indeed, the behavioral tracking industry is currently the focus of the online privacy debate. At the center of the discussion is the Federal Trade Commission’s Do Not Track (DNT) proposal. The debate raging around DNT and the specific details of its implementation disguises a more fundamental disagreement among stakeholders about deeper societal values and norms. Unless policymakers address this underlying normative question – is online behavioral tracking a social good or an unnecessary evil – they may not be able to find a solution for implementing user choice in the context of online privacy. Practical progress advancing user privacy will be best served if policymakers and industry focus their debate on the desirable balance between efficiency and individual rights and if businesses implement tracking mechanisms fairly and responsibly. Policymakers must engage with these underlying normative questions; they cannot continue to sidestep these issues in the hope that “users will decide” for themselves.
Download the paper from the SSRN at the link.
Discussions of hate speech on the Internet.
Stephen L. Newman, York University Department of Political Science, Should Hate Speech Be Allowed on the Internet? A Reply to Raphael Cohen-Almagor, 2 Amsterdam Law Forum 119 (2010).
Raphael Cohen-Almagor, University of Hull, Countering Hate on the Internet--A Rejoinder, 2 Amsterdam Law Forum 125 (2010).
Wednesday, September 28, 2011
Wojciech Saduriski, University of Sydney Faculty of Law, has published Freedom of the Press and General Theory of Freedom of Speech, as Sydney Law School Research Paper No. 11/57. Here is the abstract.
Freedom of the press is a special principle vis-à-vis the general principle of freedom of speech; ‘special’ not in a weak sense, as a concretization of the general principle to a special category of issues, but ‘special’ in a strong sense, as governed by particular principles and criteria which do not apply in the same way to the general principle of freedom of speech. The ‘special’ character of freedom of the press is displayed by a special range of its right-holders (though the blurring of the distinction between news makers and news consumers renders this criterion increasingly fragile and unreliable), by the special subject-matter of rights triggered by freedom of the press (though special privileges for journalists may be questioned as unfair and self-serving), and most importantly, by special rationales for freedom of the press: not all justifications for general freedom of speech apply, or apply without important revisions, to freedom of the press. Deriving all rules regarding the contours and the strength of freedom of the press from the requirements of democracy may seem questionable but is ultimately persuasive. In particular, there is nothing antithetical to political democracy in allowing non-political speech to be regulated by the majority of the day. It will just not come under the control of the special principle of freedom of the press.
Download the paper from SSRN at the link.
Tuesday, September 27, 2011
ABA Forum On Communications Law Announces First Amendment and Media Law Diversity Moot Court Competition
From the ABA Forum on Communications Law
The ABA Forum on Communications Law is inviting qualified law students to apply to participate in its First Amendment and Media Law Diversity Moot Court Competition!
This outstanding competition, now in its fourth year and co-sponsored by NBLSA, NLLSA, NAPALSA, and NNALSA, is designed to introduce minority law students to the practice of media law, and offers participants a chance to
o Compete at a national level
o Receive advocacy skills feedback from prominent judges and attorneys
o Explore leading-edge issues in media law
o Attend the ABA’s annual Conference on Communications Law
o Meet media lawyers practicing at the forefront of their field
o Win a trip to the Ritz Carlton in Orlando, Florida
Final oral argument will be held in Orlando, Florida on February 9, 2012.
Deadline to apply is October 4, 2011!
Competition details are on our website: http://tinyurl.com/1stAmMootCt .In the meantime, however, a few highlights for your consideration:
- It’s easy(and there is no fee) to apply
o Application/registration info is online.
o A completed application consists of a registration form, and for each team member: a resume, a short writing sample (already written) and a short response to an essay question on a media-related topic
- Applicants must be members of a minority law student organization, but the competition is NOT limited to students on law school moot court boards
- Eight teams will be selected to submit competition briefs by November 29th; the top four teams, based on brief scores, will compete in oral argument in Orlando(Feb. 9, 2012); two teams will advance to finals on the same date .
- The top four will be able to attend the Forum's conference events, including CLE workshops; networking lunches and dinners; and plenary sessions on topics of interest to the media bar.
- Did we mention… this competition presents a great networking opportunity and an expenses-paid trip to the Ritz Carlton in Orlando, FL?
First Am’nt moot court competition! Finals in Orlando, at ABA Communic’s Law Conf. Details here: http://tinyurl.com/1stAmMootCt
Charlie Sheen, Warner Brothers, and Chuck Lorre have settled their differences over Mr. Sheen's spring departure from the cast of "Two and a Half Men." Mr. Sheen had sued for $100 million, but will apparently receive $25 million in the settlement. Details, however, are confidential.
Kate O'Neill, University of Washington School of Law, has published The Content of Their Characters - J.D. Salinger, Holden Caulfield and Fredrik Colting as University of Washington School of Law Research Paper No. 2011-23. Here is the abstract.
This paper analyzes J. D. Salinger's recent suit against Fredrik Colting for infringing Salinger's copyright in, 'The Catcher in the Rye' and its character Holden Caulfield. The case has been widely noticed because the Second Circuit extended to copyright cases a heightened standard for injunctive relief that requires evidence of irreparable harm. Meanwhile, however, the court's certainty that Salinger should prevail on the merits has escaped much critique. To begin, I argue that the district court misread Colting's novel by mistaking his metafiction for a conventional sequel. I suggest two practical litigation strategies to avoid this outcome. Next, I fault the Second Circuit for adopting this error and further asserting that Colting's novel irreparably harmed Salinger by invading his "right not to speak." This rhetoric, if taken seriously, distorts the meaning of Section 107 of the Copyright Act and undermines the policy of the fair use defense. Paradoxically, it also enables district courts to issue injunctive relief even though plaintiffs have no evidence that an alleged infringement is causing them commercial harm.
Download the paper from SSRN at the link.
Monday, September 26, 2011
The South Dakota Supreme Court has ruled that under the First Amendment and at common law the media and public have a qualified right to attend a civil proceeding and a right to examine the records filed with the court, overruling the trial judge who had closed the proceedings and records in response to requests from both parties.
Examining the judge's reasoning under both the First Amendment and the common law, the Court wrote in part:
We first address whether the media and public have a qualified right to attend a civil trial and access documents filed with a court. It is established that a right of access to civil court proceedings exists. ... But whether that right stems from the First AmendmentI or the common law has not been specifically addressed by this Court. Both the First Amendment and the common law involve a presumption of openness, but the scrutiny required of the trial judge's decision to close the proceedings differs. Under a First Amendment analysis, the presumption of openness can only be overcome with a showing of an "overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." ... The common law, on the other hand, balances the competing interests of the parties. With either analysis, we review the trial court's findings of fact under a clearly erroneous standard, its application of the law de novo, and the ultimate decision to close a proceeding for an abuse of discretion. ...
We acknowledge that Supreme Court cases dealing with the public right of access to trials have been in the context of criminal cases. The Eighth Circuit Court of Appeals, however, applied the same principles to a civil proceeding involving contempt. ...In summary, the United States Supreme Court has established the media and public's First Amendment right of access to criminal trials. The Eighth Circuit Court of Appeals extended that right to civil contempt trials. And our Court has recognized the right as applied to juvenile trials. The rationale applied in reaching those conclusions is similar and consistent – "openness enhances both the basic fairness of . . . trials and the appearance of fairness so essential to public confidence in the system." ...Logically, the rationale for openness applies equally to civil trials. Open civil trials also protect the integrity of the system and assure the public of the fairness of the courts and our system of justice. We, therefore, hold that the First Amendment affords the media and public a qualified right of access to civil trials in this state.
The Publicker court succinctly set forth the procedure and substance a trial court should follow before closing a trial. The court explained:Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to protect and make findings specific enough that a reviewing court can determine whether the closure order was properly entered. Substantively, the record before the trial court must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.
...We now adopt the Publicker court's analysis as it comports with, and augments, the review and analysis we applied in In re M. C., 527 N. W. 2d at 293, and In re Hughes County, 452 N. W. 2d at 133.
Turning to the case before us, we find several problems with the procedure used and decision reached by Judge Delaney. First, Judge Delaney did not correctly apply the First Amendment or the common law presumption of openness. Second, he did not require the parties to show that closure was necessary "to preserve higher values." Third, he failed to "articulate[ ] . . . findings specific enough that a reviewing court c[ould] determine whether the closure order was properly entered." And finally, he failed to narrowly tailor the closure order.
Judge Delaney's initial order excluding the media and public was entered in response to motions from the parties. The order "closed the trial and records of this matter from the public including the press." After the media intervened, Judge Delaney acknowledged that the first order may have been too broad. He then modified his order closing all portions of the trial dealing with "internal financial affairs (General Ledgers, P&L's) of Bear Country and its proprietary data (past and future plans for development, expansion, and the like) and trade secrets (sources of stock, care and operating methods for maintaining the health and exhibition of the stock, etc.)."
In determining Bear Country's value, Judge Delaney found that "a number of exhibits and testimony will directly involve trade secrets, proprietary matters, or the internal financial information of Bear Country." When and how Judge Delaney arrived at that finding is unclear. The record does not indicate that a prior in camera proceeding took place or that the parties had provided him with information to support that finding. Judge Delaney's conclusory findings appear to be based on what he expected the evidence to be. Such conclusory findings are insufficient and prevent meaningful appellate review.
Further, Judge Delaney indicated that he closed the proceedings and records based on SDCL 15-15A-8, which limits public access to certain court records, and SDCL 37-29-5, which limits public access to trade secret information. In reference to these two statutes, Judge Delaney stated: "Upon request of the parties, there seems to be no leeway for the Court but to grant protection for these items." He reasoned that the legislature had "broad power" to close hearings, such as juvenile cases and abuse and neglect cases; "Ergo, the aforementioned statutes should receive the same respect."
Initially, Judge Delaney's reliance on SDCL 15-15A-8 as authority to close the trial is misplaced. SDCA 15-15A-8 does not pertain to trial closure. It pertains only to court records and provides that confidential numbers and financial documents can be excluded from public access.... In addition, the procedure for accessing the confidential information is outlined in SDCL15-15A-10, which allows access "if the court finds that the public interest in granting access or [**23] the personal interest of the person seeking access outweighs the privacy interests of the parties or dependent children. In granting access the court may impose conditions necessary to balance the interests consistent with this rule." ...While SDCL 115-15A-8 may have allowed Judge Delaney to deny access to certain information in the court records, such as social security numbers or tax identification numbers, his actual closure was much broader and inconsistent with statutory procedure. Based on the broad closure order, we are unable on review to determine if a legitimate reason existed to seal parts of the record.
The trial court's reliance on SDCL 37-29-5 is similarly misplaced. This statute allows trial and record closure to "preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval." The trial court, however, did not follow the procedure outlined in the statute. The trial court did not conduct an in camera hearing, make specific findings, or narrowly limit closure to the trade secret evidence.... In fact, a review of the record indicates that the evidence at trial involved little, if any, information concerning trade secrets.
Because Judge Delaney erroneously applied the First Amendment's presumption of openness, did not require the parties to show that closure was necessary to preserve higher values, did not articulate specific findings permitting meaningful review, and did not narrowly tailor the closure order, we conclude that he abused his discretion in closing the trial proceedings from the media and public. Accordingly, we agree with the Media that a permanent writ of prohibition be issued, effectively rescinding Judge Delaney's order preventing the Media and public from attending Bear Country's trial proceedings.
The Media also challenges Judge Delaney's participant gag order. Judge Delaney issued a gag order preventing the parties to the Bear Country litigation from discussing "privileged and financial information" and "the trial proceedings in whole."
Although Judge Delaney imposed the gag order to protect "privileged and financial information," in his response brief, he does not detail any basis for imposing a gag order to protect those interests other than "an inherent power, as well as a duty, to conduct a fair and orderly trial [and] . . . [that] the court has the authority to issue such proper orders as may be necessary from time to time." This inherent power, however, has only been discussed in criminal cases in South Dakota. ...Gag orders in criminal cases are usually designed to protect a defendant's right to a fair trial by an impartial jury. ... The Casey family's dispute over Bear Country's value was a civil case tried to the court, not a jury. Therefore it is unclear how prohibiting the trial participants from discussing the case with others would affect Judge Delaney's ability to "conduct a fair and orderly [civil bench] trial." Even though Judge Delaney had the unquestioned authority to ensure a "fair and orderly trial," that standard has no application here. ...
We are not persuaded that Judge Delaney had statutory or legal authority to issue the gag order under the facts and circumstances of this case. Accordingly, we agree with the Media that a permanent writ of prohibition be issued, effectively rescinding Judge Delaney's order preventing the parties from discussing the case outside of court.
The Media's request for a permanent writ of prohibition is granted.
The case is Rapid City Press v. Delaney, 2011 S.D. 55, 2011 S.D. LEXIS 113.
BBC Director-General Mark Thompson on the importance on journalism in a "dangerous period." He told an audience at a reporters' conference in Taiwan to keep things in perspective as more reports of phone hacking surface. More here from the Independent. Meanwhile, yes--more reports of phone hacking pile up and News International is trying to deal with them. More here from the Guardian.
Friday, September 23, 2011
The Parents Television Council has announced it will file a complaint with the Federal Communications Commission over the September 22 incident on the Fox Network show The X Factor in which performer Geo Gordley "dropped his pants" during his act. Fox blurred out the offending parts (of Mr. Gordley's anatomy) but the audience saw the performance, ahem, in its entirety. "X Factor" judge Paula Abdul left the stage when the partial disrobing occurred. The show is taped ahead of time and airs at 9 p.m. Eastern Time.
More here from the Hollywood Reporter.
Banned Books Week begins tomorrow, September 24th, and to celebrate it, users in libraries across the U.S. will have access to books that were unceremoniously yanked from the shelves. In Charlton, Massachusettes, Mark Twain's "Eve's Diary" is returning. Other works returning are Kurt Vonnegut's Slaughterhouse Five and Sarah Ockler's Twenty Boy Summer (though access seems to be restricted). Reading matter continues to be a hotly contested issue in schools and libraries. More here from The Guardian, the American Library Association, and the National Coalition Against Censorship. The ALA lists these novels as the top one hundred books most frequently challenged and/or banned in the U.S. as objectionable because of their content.
David A. Simon, Harvard Law School, has published Culture, Creativity & Copyright in volume 28 of the Cardozo Arts & Entertainment Law Journal (2011). Here is the abstract.
Recent literature in copyright law has attacked the traditional theory that economic incentives motivate people to create. Although the onslaught of criticism has come from different directions, it all shares a similar goal: to move copyright law in a direction that reflects actual creative processes and motivations. This Article adds to and diverts from these accounts, arguing that creativity may be a product of memes: units of culture, analogous to genes, that replicate by human imitation.
A memetic theory of creativity focuses on memes as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator’s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity. The idea that replicators play a role in cultural creation suggests, among other things, that copyright’s originality requirement should be heightened; that the derivate right should be loosened; that fair use should be retained; and that moral rights should be discarded or substantially revised.
Download the article from SSRN at the link.
Thursday, September 22, 2011
Jason M. Shepard, California State University, Fullerton, has published Bloggers after the Shield: Defining Journalism in Privilege Law, at 1 Journal of Media Law & Ethics 186 (2010). Here is the abstract.
Josh Wolf claims to be the longest jailed journalist in American history after courts rejected his journalist’s privilege claims and he spent 226 days in prison. But was the blogger really a journalist entitled to invoke privilege protections? Academics, journalists, lawyers, judges and lawmakers have struggled to articulate legal definitions of journalism as bloggers increasingly seek newsgathering protections. This article evaluates controversies in state statutory interpretation, federal shield law proposals and federal common-law development. The article argues that the analytical evolution in federal and state case law supports expanding privilege protection to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.
Download the article from SSRN at the link.
Wednesday, September 21, 2011
The Ohio attorney who sued a blogger who made what he considered defamatory statements about him during the course of his representation of the family of a teenager who had run away after converting to Christianity from Islam has dropped his lawsuit against the blogger. Omar Tarazi and Pamela Geller have agreed to a settlement. Ms. Geller will remove the statements, which Mr. Tarazi objected suggested he is linked to terrorism, from her blog, and he will abandon his litigation. Ms. Geller is claiming vindication at her blog here, as is Mr. Tarazi at his blog here. More here from the Washington Post via the AP.
Ejan Mackaay, University of Montreal, has published The Economics of Life: Reflections on the Term of Copyright, in CIRANO, as Scientific Publication No. 2011s-38. Here is the abstract.
Copyright, and indeed all intellectual property, reflects a compromise between the need for reward on creations we see – by reserving them to the creator – and the need to let information freely flow so as to permit further creations to emerge with as few encumbrances as possible. Over the past quarter century or so, all parameters of copyright have been moved towards more protection, disturbing the underlying compromise. The term of protection extends well beyond what is practically useful for the vast majority of creators, much as it may serve the needs of a small number of large players who hold important older copyrights still producing revenue. This paradoxical situation results from a few founding principles considered untouchable in the countries members of the Berne Convention: it is automatically obtained, without formality and for a uniform and rather lengthy term. If we want to redress the balance underlying copyright, we may have to call these principles into question and lead creators individually to reveal the value they attach to their right by renewing it, allowing it to lapse into the public domain when they no longer value it. Whilst this would reintroduce formalities into the structure of copyright, technological advances may make these less of a burden than they were at the time of their abolition. Alternatively, one might consider an interpretation of equitable exceptions to copyright (such as fair use and fair dealing) so as to expand them gradually as the copyright in question ages. Such approaches would have the fortunate effect of avoiding that lobbying by the happy few needlessly locks up culture for most of us.
Download the paper from SSRN at the link.
Tuesday, September 20, 2011
The First Circuit has reinstated the jury award of damages against Joel Tenenbaum, the Boston University grad student found liable for illegally downloading copyrighted songs. A lower court judge had reduced the amount of damages Mr. Tenenbaum was forced to pay from $675,000 to $67,500, but the 1st Circuit ruled that the judge did not have the authority to do so.
After handling the trial with great skill, the district court committed reversible error when, after the jury awarded statutory damages, it bypassed the issue of common law remittitur, and instead resolved a disputed question of whether the jury's award of $22,500 per infringement violated due process, and decided itself to reduce the award. The court declined to adhere to the doctrine of constitutional avoidance on the ground that it felt resolution of a constitutional due process question was inevitable in the case before it. A decision on a constitutional due process question was not necessary, was not inevitable, had considerable impermissible consequences, and contravened the rule of constitutional avoidance. That rule had more than its usual import in this case because there were a number of difficult constitutional issues which should have been avoided but were engaged.
Facing the constitutional question of whether the award violated due process was not inevitable. The district court should first have considered the non-constitutional issue of remittitur, which may have obviated any constitutional due process issue and attendant issues. Had the court ordered remittitur of a particular amount, Sony would have then had a choice. It could have accepted the reduced award. Or, it could have rejected the remittitur, in which case a new trial would have ensued. See 11 Wright, Miller & Kane, Federal Practice and Procedure § 2815, at 160 (2d ed. 1995).
In reaching and deciding that due process constitutional question, the district court also unnecessarily decided several related constitutional issues. The court determined that the statutory damage award was effectively a punitive damage award for due process purposes and applied the factors set forth in BMW v. Gore, 517 U.S. 559, ...(1996), to assess its constitutionality. The court declined to apply the Williams standard the Supreme Court had previously applied to statutory damage awards. ... The district court's tack also led to unnecessary resolution of Seventh Amendment issues. The decision to reduce the jury's award without offering Sony a new trial implicitly presupposed that, in reducing a statutory damage award issued by a jury, a court need not offer plaintiffs the option of a new jury trial in order to comport with the Seventh Amendment.
The United States, concerned with defending the constitutionality of the Copyright Act and its statutory damage provision, argues that the district court erred by unnecessarily reaching Tenenbaum's constitutional challenge to the award and bypassing the question of common law remittitur.The United States alternatively argues that, if the due process issue were reached, the district court was required to apply the Williams due process standard. The United States points out an inferior federal court may not displace the Supreme Court's on point holding. The United States also raises Seventh Amendment concerns.
We agree with the position of the United States that the district court erred when it prematurely reached a constitutional question of whether the jury's award was excessive so as to violate due process. We reverse the reduction of the award, reinstate the original jury verdict and award, and remand for consideration of the common law remittitur question.
If, on remand, the court allows any reduction through remittitur, then plaintiffs must be given the choice of a new trial or acceptance of remittitur.
Read the entire ruling here.
News International has apparently offered the family of Milly Dowling a three million pound settlement to end the lawsuit that arose out of allegations that News of the World reporters hacked the missing teenager's cell phone. The hacking led to the family's belief that Milly might still be alive, since messages were deleted. Milly was eventually found murdered. Such a payment would be one of the largest ever made by any newspaper has ever made in such circumstances. More here from the Guardian and the Hollywood Reporter.
Monday, September 19, 2011
According to the Hollywood Reporter and the L.A. Times, the battle between Charlie Sheen and Warner Brothers and Chuck Lorre may soon be history. Mr. Sheen and the studio and Mr. Lorre faced off with competing claims earlier this after Mr. Sheen left the popular CBS show "Two and a Half Men" amid allegations that he was unable to meet his obligations under the contract he had with Warner Brothers and Mr. Lorre. Under the agreement he is likely to receive a payout in the millions in return for dropping his wrongful termination claim. More here from the Los Angeles Times.
At the Emmy Awards on Sunday, September 18, Mr. Sheen made a friendly gesture toward the "Two and a Half" cast before presenting the "Best Performance By An Actor in a Comedy Show" Award. Saying he wanted to "get something" off his chest, he told what must have been a slightly apprehensive audience, "From the bottom of my heart I wish you nothing but the best from this upcoming season. We spent eight wonderful years together and I know you will continue to make great television." He then presented the names of the nominees. The winner was Jim Parsons, star of another Chuck Lorre comedy, "The Big Bang Theory."