A ruling of U$S174,545.45 per song and a result that the RIAA should cry for

In Capitol v Jammie Thomas-Rasset the jury just handed down a sentence of U$S1,920,000 against the defendant for the wilful copyright infringement of 24 songs, which they found Mrs Thomas-Rasset made available for others to download through Kazaa. The claimant (plaintiff in the case because is in the US), Capitol Records, alleged that the defendant made available to others thousands of songs but it decided to concentrate on 24 songs for which it had more evidence. At the end, it seems that the claimants specialists could only link 11 songs to the defendant’s computer, so the actual tag is not U$S80,000 per song as the jury decided but U$S174,545.45 per song (for the other 13 songs even the claimant’s specialists recognized that they couldn’t probe that they had been actually shared). For the remaining 11 songs, there are suggestions that all the evidence was circumstantial, although a lot of it.
The legal issues that the ruling raises are so many and so contentious that several papers can be written out of it (which for sure they will), but there are a couple that stand out as especially relevant. The first is the clarification that the music industry argument that “making available for download” is copyright infringement in the US is wrong. The case had to be retried because in the original case the judge had instructed the jury that making available for downloading was copyright infringement, which clearly contradicted the letter and spirit of the law. In the new trial, there was some evidence, albeit circumstantial, that somebody had downloaded 11 songs from the defendant’s computer, making her liable for copyright infringement by distributing the protected content (one of the exclusive acts reserved for the copyright holder). The other issue is the amount of damages.
The “loss” of the music industry would be in the range of 70 cents per song, which is what it would get of the 99 cents paid for legally downloading each of the songs in questions, so getting an award of U$S174,545.45 per song seems a “little” excessive and, even more, unconstitutionally excessive. In State Farm Mutual Automobile Insurance Co. v. Campbell (2003), 538 U.S. 408, 123 S. Ct. 1513, the U.S. Supreme Court decided that a punitive damage award of $145 million when compensatory damages were $1 million were excessive and violated the due process clause of the Fourteenth Amendment. According to the ruling, compensatory damages have as purpose to compensate a plaintiff for a loss, while punitive damages act as a deterrence and retribution and serve the same purpose as criminal penalties. Civil defendants are not afforded constitutional protections given to criminal defendants, therefore, there is a danger of deprivation of property without due process of law. The Supreme Court used BMW of North America, Inc. v. Gore, where it was established that three factors have to be considered in assessing punitive damages:

1) the degree of reprehensibility of misconduct;
2) the disparity between the actual or potential harm and the punitive damage award; and
3) the difference between punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparative cases.

Futhermore, in order to determine the reprehensibility of misconduct, the most important factors must be:

1) the harm is physical rather than economic;
2) the conduct exhibits indifference or reckless disregard to the health or safety of others;
3) the conduct involves repeated actions rather than an isolated event; and
4) the harm results from intentional malice, trickery or deceit, not just an accident.

Needles to say that the conduct of the defendant Jammie Thomas-Rasset does not get even close to any of the necessary factors needed to justify such a disproportion between the actual loss and the punitive damages.
The RIAA should better put the champagne back in the fridge because when they think that they have won, they actually have handed on a silver plate to those in favour of digital freedom the opportunity to clearly establish that making available for download is not copyright infringement in the US (as already decided) and that their damages cannot not be as outrageous as they currently are.

Harry Potter yet again in court (or trying to get millions magically)

The Australian Daily Telegraph brings the news that the estate of Adrian Jacobs is suing JK Rowling’s publisher, Bloomsbury, for copyright infringement and claiming £500 million. The suit has its origin on the allegation that Harry Potter and the Goblet of Fire contains the same concepts presented in Jacobs’ Willy the Wizard, a 36 page book of which 1,000 copies were made.

According to the newspaper, the claimants argue that

Both Willy and Harry are required to work out the exact nature of the main task of the contest which they both achieve in a bathroom assisted by clues from helpers, in order to discover how to rescue human hostages imprisoned by a community of half-human, half-animal fantasy creatures, the merpeople in Harry Potter, Mr Markson said in a statement to The Daily Telegraph.

"Many other similarities are described in the Claim filed by the Estate, which include the idea of wizards travelling on trains, famously referred to in Harry Potter as the Hogwarts Express.

"It is alleged that all of these are concepts first created by Adrian Jacobs in Willy the Wizard, some 10 years before JK Rowling first published any of the Harry Potter novels and 13 years before Goblet of Fire was published.

"It is also alleged that, at the time in trying to get his work published, Mr Jacobs sought the services of a literary agent, Christopher Little, who also later became Ms Rowlings literary agent in the Harry Potter series.

Leaving apart the issue that Jacobs’ book was in the hands of whom then became JK Rowlings agent, it seems that the whole lawsuit is based on some ideas being similar and there is where things are difficult to understand. The Copyright, Designs and Patents Act 1988 in its section 16 (3) makes clear that, subject to some exceptions, it is not necessary to copy the whole work, but it has been clarified in Warwick Film Productions Ltd v Eisinger (1969) that a substantial part of it should be reproduced in order to have infringement. Here it is important to remember that substantial refers to the quality more than the quantity of the copy, as explained by Lord Reid in Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964). Furthermore, substantiability refers to being substantial in the copied work and not in the copying one, as decided in Designers Guild Ltd v Russell Williams (Textiles) Ltd (1998) reaffirmed by the House of Lords in 2001(it would not be a defence to say that Willy the Wizard is one tenth of the Goblet of Fire, because the suit does not claim that JK Rowling is not creative, it claims that Jacobs’ work has been copied). So, it first has to be established how much of the Jacobs’ work is constituted by the parts referred to above.

The other issue relevant to copyright infringement is to address whether the protected work has been reproduced or not and to establish that we need to look at how similar both works are and then if the similarity has been brought by the act of copying. The previous discussion makes clear that the infringing work needs not be identical, but it can be argued that courts have made a huge disfavour to the certainty and clarity of this issue by blurring too much the distinction between expression and idea, distinction that is central to the concept of copyright. The case Ludlow Music Inc v Robbie Williams (2001) is a prime example of courts making an appalling mess of the law of copyright by finding infringement due to one song taking its central idea from other (yes, there is not mistake, the court did refer to copying the idea as infringement!). Generally speaking, the infringing work should reproduce the original in some form, although this does not imply exact word-by-word copying. CDPA 1988 s16 (3)(a) makes clear that reproduction does not need to be exact, which has been interpreted as covering the way of arranging ideas too, in Harman Pictures NV v Osborne (1967). Finally, it is the case Ravenscroft v Herbert (1980) the one that may give the claimants some hope of success because it establishes that an author cannot use the language and arrangement of facts of a previous work (artificially protecting ideas without saying so).

Fortunately, the Da Vinci Code case, Baigent v Random House Group Ltd (2007) put some rationality in the common law arena and established that facts, themes and ideas were open to anyone to use (although the claimants got away with using the courts to make their previously unknown book a best-seller).

So, is this a genuine case or a way to try (yet again) to use courts to change the fact that a writer has written a book that few people want to buy and other has written a different book with some similarities that has sold millions of copies around the globe? The situation is not helped by the involvement of a publicist promoting the action and making a point that Mr Jacobs died penniless and JK Rowling is a billionaire. The law of copyright shouldn’t be concerned with the fact that an ignotus author died poor due to losing everything in the stock market (unrelated to the book or the current action) and it shouldn’t be affected by the sympathy that a publicist is trying to attract to his (?) cause (by the way, in a system with no juries, shouldn’t you get a good lawyers instead of a publicist? or the whole lawsuit is just to make money by becoming a “celebrity”?). But there is quite strong argument that courts are to blame for this type of lawsuits.

In England the characteristics of common law give some flexibility to the law but they also mean that many cases are decided based on the personal preferences of the judges (what is always strongly denied by them or common law analysts), who many times use their rulings to relax or restrict principles that are quite well defined in other jurisdictions., like the distinction between expression and idea. And on the policy side, why a court should protect the way that facts, information and ideas are presented by someone, not the way they are expressed, when other person uses the same way but expresses them in a form that is preferred by the public? Even more, courts in this side of the Atlantic seem to be lenient to claimants that use the courts to change their lack of success in the market even when the claim can be understood as frivolous and without merit. Across the pond, however, courts have been less reluctant to deal nicely with this type of lawsuits and in Scholastic, Inc. v. Stouffer 221 F. Supp. 2d 425 (S.D.N.Y. 2002) the judge fined Ms Stouffer U$S50,000 for her “pattern of intentional bad faith conduct” and in Canada a judge ordered Kim Baryluk, the song writer behind the almost unknown The Wyrd Sisters band that sued Waner Bros for CAD40,000 for…no reason, to pay the CAD140,000 legal costs of the defendant.

Isn’t it time that courts make clear in England that if the public does not like your creation courts are not there to give you a hand paying your bills? And also, although it is true that due to the robes and wigs English courts look like Hogwarts, it is also time that people understand that they are not a place where lack of talent can be magically transformed into millions...

Is The Times using courts to curtail potential competition?

Today The Times has announced proudly that a “Landmark ruling lifts lid on police blogger”, referring to a case that The Times won against the author of the Nightjack blog (who tried to get an injunction preventing The Times from revealing his name). But is it something to be really proud of? Or, like the music industry using courts to stop the unstoppable and try to save a failed business model, The Times just found an easy case to undermine the activities of some bloggers and went for the part (their anonymity) that may discourage many from revealing some news? Isn’t it the case that the ruling in question will come to hunt newspapers in general and The Times in particular when in the future they try to keep the anonymity of a source that got the information breaking some rule?

The arguments of The Times could be summarized in saying that the name of the blogger did not deserve protection because he was a policeman that was breaking police rules and, therefore, there was public interest in knowing the name of such a rule-breaking public servant. This is a very strange and dangerous proposition to be put forward by a newspaper; haven’t they heard about the Pentagon Papers? Do they think that those that gave the papers to the New York Times and the Washington Post had the authorization to do that? Or probably when The Times published an article on June 29, 1972, referring to and explaining the contents of the Papers did not matter that they had been obtained by breaking the rules (actually a quite serious law in the US)? One of The Times analysts tries to make a link between the ruling and freedom of information, clearly ignoring the quite precise meaning that freedom of information has in that setting. class="MsoNormal">Finally, The Times also engages in some silly form of character assassination by trying to show how bad the activities of the blogger were, but nothing helps to change the sensation that, legalities apart (the disputable ruling of the judge deserves a full paper on it), something is quite wrong on the ethical side of The Times.

Interestingly enough, one of the “analyses” of the ruling that appears on The Times ends by trying to preempt the obvious saying that “ironically [...] there will be plenty of bloggers who […] ‘will argue it has a chilling effect that will deter bloggers from putting information out there’”, quoting an, of course, anonymous lawyer…

An Argentine copyright case with political implications and little more

After more than a month away from this version of cyberspace, some strange IP news brings me back to drink legal mate (and leave my marking for a while).
A couple of days ago an Argentine judge ordered the ruling party, the Peronism that uses the name Partido Justicialista (well, a coalition called Frente para la Victoria –Front for Victory- purporting to be the party), to stop using the most popular version of the party’s anthem due to a copyright infringement lawsuit brought by the state of Hugo Del Carril, the author and interpreter of the most famous version of the song and one of the undisputed notables of the Peronist Party. Argentina has a quite developed copyright law and it is member of the Berne Convention, the Rome Convention and WTO’s TRIPS, all of which establish that authors and performers have exclusive rights to reproduction, distribution to the public and authorization of public performance of their work. These rights of interpreters on recordings can be found in art 56 of the Law Number 11723 (as amended) of Argentina. Until here there is no much of a news more than the political issue created by the son of Hugo Del Carril by denying the use of the song to the group that is currently in the Argentine government because he alleges they are not really peronists, which according to him (and to the judge that concurred) would satisfy the reasons for denial of authorization instituted in the law. However, although not surprising for those versed in Argentine politics and the way that “rule of law” is interpreted there, things started to get strange when the country’s Minister of Justice, Anibal Fernandez, said that “they” would keep using the song as much as they wanted, which was later put into practice in a political meeting of the Frente para la Victoria that was attended by the husband of the current president and candidate to the House of Representatives of the Argentine Congress, Nestor Krichner…beyond the political issue represented by the fact that the Minister of Justice of a country is saying that will ignore a judicial ruling and that the judicial ruling is directed to a political party not to the government (it seems that in some point those in the government of Argentina cannot see the difference) there are several legal issues that deserve a more detailed analysis.
That the state of the singer has the right to not authorize the public performance of the song is beyond question, as established by relevant law and explained by the judge that expressly ruled against continuing its use, making the use of it by the Frente por la Victoria both copyright infringement and contempt to court. Following Argentine obligations under international law, such copyright infringement incurs both civil liability and criminal responsibility, as per articles 71, 72 and, especially, 73 of the mentioned Law 11723 of the Legal Regime of Intellectual Property of Argentina. The civil liability would be incurred by the meeting organizers, the Frente para la Victoria and the one that actually played the song, and the criminal responsibility would lie with the person that played the song because in Argentina criminal responsibility must lie with a physical person. But the problem does not stop there because art 209 of the Argentine Criminal Code makes a crime to “incite to commit a crime” and art 213 of the same code criminalizes the act of being apologetic of the commission of a crime or a criminal, making the Minister’s declaration a clear crime. Furthermore, art 248 of the Argentine Criminal Code creates the crime of not fulfilling the duties of a public officer, which includes issuing orders contrary to the law, as the one in question. Accordingly, when Anibal Fernandez said that “they” would keep using the song in dispute and, therefore, disobeyed a court order, he committed an array of crimes within and outside of the realm of intellectual property law.
Finally, it is an accepted principle of international law that unilateral declaration of public officials can, in some particular circumstances, be binding for countries and affect their status within certain international legal regimes, as established in the case of Denmark v Norway, PICJ (1933)..is the Minister of Justice of Argentina saying that authors and interpreters rights can be ignored and therefore denouncing several international conventions, the TRIPS agreement and Argentina’s obligations under the WTO system?…

Ooops, they did it again (or something smells bad in Sweden)

The last few days the wires have been busy transmitting information and analysis about the recent Swedish court case that convicted Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde, who run Pirate Bay, to one year in jail for the crime of copyright infringement. However, today the same case has come to the spotlight for a different reason, showing that, once again, the moral high grounds that the music industry is claiming is actually so low that throws into doubt the reputation of a decent legal system as the Swedish.
Today it has been made public that the judge that decided the case against the Pirate Bay members is member of several organizations that either have as main goal to strengthen copyright laws and their enforcement or have as co-members some of the lawyers that represented the music industry in the case…the judge seems to have the peculiar view that belonging to organizations as the Swedish Association of Copyright alongside with Henrik Pontén, Peter Danowsky and Monique Wadsted, who represented rights holders in the Pirate Bay trial, or the Swedish Association for Industrial Property, which pushes for a stronger copyright and has the judge as member of the board, don’t imply that he is biased and that the result of the trial should stand…however, it is clear that the words that John Kennedy, chairman of the International Federation of the Phonographic Industry (IFPI), used to describe the outcome of the Swedish case should be supported because the current case "will send out a message, even to kids, that what they thought was OK, isn't" as even in decent Sweden justice seems to be co-opted and tarnished by the entertainment industry…

On pirates, infringers and the choice of words

Much ink and bytes have been devoted to the issue of the ruling against the Scandinavian site Pirate Bay and it could be argued that there is no much point of analyse it again here, for extemporaneous and for repetitive. However, it is a good opportunity to reflect on the use, or better said misuse, of the word pirate within the context of IP law and the clear intentionality that such use encompasses. It is also a good example of how many times (far too many) those trying to oppose a state of affairs, although well intentioned, reinforce some of the negative aspects of what they are trying to resist. The use of the word “pirate” in Pirate Bay clearly exemplifies this situation, because acknowledges, confirms and legitimizes the use of a word in a context that should have never been used in the first place. But those that promote the hypertrophy of intellectual property rights have not chosen it lightly or naively.
Under international law piracy can be said to correspond to the original reference to some form of universal jurisdiction, for which it was a crime that violated jus cogens, a set of principles so strong that are considered to be above any of the sources of law enumerated in art 38 of the Statute of the International Court of Justice. Pirates were considered to be hostis humani generis, o enemies of the entire humanity. Furthermore, piracy constituted one of the few exceptions to the principle of extra territorium jus dicenti impune non paretur impune, allowing anyone to prosecute pirates even in the high seas… So, faced wit the reality that their business models were obsolete and they couldn’t or they didn’t want to adapt to the new realities of sharing more freely the creations of the mind, the owners of industries that base their competitiveness on some form of distortive protection granted by the state discovered that one of the forms of getting governments on their side was to label those infringing those grants, now converted into rights, as pirates converting them automatically in the scum of the earth... But reality always bites…

Under the current circumstances, where the real piracy has made a comeback and industries and countries are facing real losses, both in economic resources and human lives (and not some fictional numbers that change everyday according to the audience), the continuation of the use of the word pirate to refer to copyright infringement is simply preposterous. It is time to recognize that copyright infringers are copyright infringers and that calling them pirates should amount to some form of defamation…

A couple of dives in Japan and the potential legal implications of diving with computers

Yesterday was a fine day in Wakayama prefecture in Japan, and a day that I enjoyed visiting the other 70% of the planet, the sea. I went to Kushimoto from Nagoya to have a couple of dives with the very nice and friendly people of Coral Queen. The day started with a dive in Soushima 2 where, following the plan, we first went down to the first plateau at 12 metres, then to the second step at 21 to finally reach the bottom at 30 metres of depth. The visibility was fine and the temperature was at a bearable 18 degrees (Celsius). Once in the bottom a Moray Eel greeted us with some menacing behaviour and we keep swimming among some Narrow banded batfish, balloon porcupine fish, surgeon fish, different types of tangs and a very long list of species that would take several paragraphs to write down here, for the rest of the around 35 minutes, when we went up to 5 metres for a 5 minutes safety stop. The first dive was nice, relaxed and pleasant. We went back to the harbour and to the coast for lunch and after a short nap under the sun we went back to the sea for a second dive. That time it was at Sumisaki and it was going to be a shallower dive.

We start going down following the anchor’s rope and when we reached 20 metres, almost at the bottom, we were welcomed by a magnificent red lion fish: probably the view of one of those justifies taking up scuba diving. The rest of the dive was as eventful and abundant of beautiful marine life as the beginning of it: to the left of the anchor there was this big pool of stripeys, which we swam past only to be greeted by a group of Moorish idols. We kept going around the reef to meet a big group of Stripped eel catfish, some Cherry bass, many types of butterflyfish, Emperor angelfish, the occasional Redlipped Morwong, loads of Heavenly damselfish, few Scarbreast Tuskfish and many many more, without forgetting the Anemone fishes trying to hide within a gigantic anemone.

One would think that being several metres under the sea people are supposed and allowed to forget everything, especially lawyers and the law, but unfortunately the phrase “only two things are certain in life, death and taxes” is not quite correct; it should be that one is only certain about death and law (technically one has to pay taxes because the law says so) and being underwater is not the exception. Following standard procedure, as described, the first dive was deeper than the second, but how deep really was could present some issues. In the first dive the bottom was supposed to be at 30 metres but my diving computer said that I was at 30.9 metres, which may imply some legal issues that many could overlook. One you are taking your first scuba diving course (in the PADI system that course allows you to go down to 18 metres), you are told that you are qualified for the specified depth but that it depends on you because there is no police under water, but, is that true? Or putting it in its correct terms, is that still true? Hasn’t the use of computers introduced new elements were the depth for which you are qualified is liable of being monitored and, thus, enforceable? Since I am writing this on my way back from Kushimoto and not from a recompression chamber, it has not occurred, but lets imagine that I had a diving accident during my first dive, will my situation be different due to using a diving computer?

Dive accidents are very uncommon but when occur they are very dangerous, many times requiring expensive treatment in a recompression chamber. Furthermore, if you are diving far from a chamber you may need to be transported in a low-flying helicopter (for the full explanation you will have to wait until I finish the full paper, but trust me that after diving you cannot take planes or go to heights), which would substantially add to the expense. Accordingly, it is wise (in some places compulsory) to dive with proper insurance, which would cover the expenses in case of an accident if you are diving within what you are authorized to do…and there is where computers enter into the game.

Until the introduction of diving computers there was no real way to tell how deep you had dived, since the gauges showed (they still show) the depth you were at given time and changed automatically whenever you went up or down (there is a gauge that shows the deepest point, but is very easy to reset making it non-permanent). However, diving computers, even the most basics, tell you the deepest point you have reached and the more advanced ones tell a very precise story of the depth you were in each point of the dive. So, if we imagine a diving insurance that covers you only up to the depth you are certified to dive, today my insurance could try to argue that I haven’t been covered in my first dive because my certification allows me to dive up to 30 metres (which is very deep anyway).

One of the problems with that is that, regardless how modern a diving computer is (mine is very modern) they are not precise to the extreme (the computer of Shingo, who was diving with me, said that we went down to 30 metres only), which would create a problem of reliability and, if the expense is really onerous, potential litigation over which computer is the one to follow. Furthermore, although we are talking about civil liability and the standard of proof would be as a matter of probability, it could be argued that in the case of an accident the computer could not be used as reliable evidence unless it is secured in the moment that the victim-diver is brought to the surface or rescued from the surface, which is very unlikely to happen.

In the case of not using one of the new more sophisticated computers other problem arise. Sometimes exceeding the depth for which one is certified could be the consequence of the accident or the accident itself, like when one is caught in a strong downward current from which cannot escape. Although in theory one would be able to compensate the problems that such situation may cause, the lack of remaining air may result in having to surface without taking those corrective measures, which would imply an urgent need of the expensive treatment described before. With one of the more modern computer, using the feature that shows the dive moment by moment, a diver would be able to show that it was a current or something else what pushed him or her to the unauthorized depths, but one of the more basic computers would only show the maxim depth, which could be used by the insurance to deny the claim.

Another hypothetical situation may arise if the diver surfaces too quickly and without making a safety stop. In a no-computer dive the only thing that we would know is that we have a diver victim of some form of, for example, decompression illness, and all the procedures will be follow to ensure his/her recovery, which normally would be covered by the relevant insurance, but if the same diver is using a computer the computer log would show the rate of ascent, which could imply negligence by the diver, making a potential claim more difficult to make.

The situations are not as straightforward as presented and the legal answer would depend on the law of different jurisdiction and the terms of particular insurances and the fact is that using computers for scuba diving makes the dives safer, more enjoyable and predictable, but the above simple (and oversimplified) examples represent yet another instance where the lack of adaptation of the law to a novel situation generated by computers could create uncertainty and hamper the adoption of a useful technology.