Bit Parts

Copyright/Joint-Authorship Test

The U.S. District Court for the Eastern District of Virginia ruled that evidence supported a jury finding that movie producer Maura Flynn was co-author of the documentary, 'Your Mother Kills Animals' (YMKA). Berman v. Johnson, 1:07cv39. The jury decided that Flynn and director Curt Johnson intended to be joint authors of the documentary, and that Flynn made independently copyrightable contributions. After a dispute arose over the angle of the movie's content, Johnson had stopped communicating with Flynn and began marketing the documentary on his own. Flynn's attorney, Michael D. Steger of New York, noted that the 'trial testimony revealed that Johnson and Flynn agreed to co-produce the film, to exercise joint control over its making and to divide profits evenly, but they never put their agreement in writing.' He also said that the district court's ruling 'appears to be a case of first impression in the Eastern District of Virginia.' In its decision, the district court rejected a Ninth Circuit joint-authorship test that requires a joint author to show control over creation of the work. See, Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000). Instead, adopting the approach of the Second and Seventh Circuits,
the district court emphasized: 'the Ninth Circuit's rule is susceptible to inequitable manipulation. ' The record reflects that Flynn was contractually entitled to exercise control over YMKA and was only prevented from doing so by Johnson's wrongful conduct. It follows that to apply the Ninth Circuit's rule on these facts would violate the sensibly settled maxim that 'no one should profit by his own conscious wrong.”

DMCA Safe-Harbor Bid/Declaratory Suit

The U.S. District Court for the Southern District of California granted a defense motion to dismiss or transfer a suit that sought a declaration that the plaintiff's Internet video-hosting service was entitled to safe-harbor protection under the Digital Millennium Copyright Act (DMCA). Veoh Networks Inc. v. UMG Recordings Inc., 07-CV-1568 W(BLM). Veoh Networks claimed that all the content on its Internet service was consumer-created. 'Plaintiff seeks a far-reaching declaratory judgment that it is not liable for infringing any of Defendant's rights and is entitled to the Section 512(c) safe harbor [of the DMCA],' the district court noted. 'However, because Plaintiff does not reference any specific copyright, even by way of example, the relief requested would necessarily take the form of an advisory opinion. Succinctly, the Court cannot determine whether a safe harbor for copyright infringement exists without knowing which rights are at stake.' The court also emphasized that 'using Section 512 as a sword, rather than a shield, presents particular problems. ' In short, the safe harbor presupposes that a specific allegation of infringement has already been levied. ' Because Defendant filed suit against Plaintiff [in the Central District of California] less than a month after Plaintiff filed the instant action, the Court suspects Plaintiff is really asserting their defense in a forum of their choice.'

File-Sharing Suit/Anti-Trust Counterclaims

A Manhattan federal district court dismissed several anti-trust counterclaims by Lime Wire in a copyright-infringement action that major record labels brought against the peer-to-peer file sharing service. Arista Records v. Lime Group LLC, 06 Civ. 5936(GEL). The district court noted in part: 'Although Lime Wire 'actively solicited licensed content' from 'independent labels and artists' and 'independent retailers/distributors' ' the FAC [First Amended Counterclaims] contains no allegation that Lime Wire ever attempted to obtain or purchase a license from any of the counter-defendants or their respective joint ventures [for licensing online music]. Lime Wire's retail competitors may have 'faced excessive wholesale prices' for licenses as a result of the alleged price-fixing scheme ' but Lime Wire itself has not alleged any facts demonstrating that it suffered such harm. ' To the extent Lime Wire claims that it was an interbrand retail competitor [i.e., by selling different product brands in the same market] of counter-defendants' joint ventures, Lime Wire lacks standing to challenge the retail price-fixing agreement because the FAC contains no allegation that the fixed retail prices were predatory.' But the district court found that Lime Wire has standing to challenge the labels' mandatory licensing for filtering technology. According to the court: 'Lime Wire alleges that counter-defendants concertedly refused to provide it with 'reasonable access' to hashes [i.e., metadata identifiers] of their copyrighted works by requiring it first to seek a license for hash-based filtering technology from Altnet, which allegedly held the proprietary rights to such technology. ' [C]ounter-defendants' mandatory licensing regime inflict[s] direct and concrete antitrust injury on Lime Wire by raising its costs and thus impeding its ability, and the ability of other P2P retailers utilizing hash-based filtering technology, to operate as effective competitors in the digital distribution market.'

Copyright/Joint-Authorship Test

The U.S. District Court for the Eastern District of Virginia ruled that evidence supported a jury finding that movie producer Maura Flynn was co-author of the documentary, 'Your Mother Kills Animals' (YMKA). Berman v. Johnson, 1:07cv39. The jury decided that Flynn and director Curt Johnson intended to be joint authors of the documentary, and that Flynn made independently copyrightable contributions. After a dispute arose over the angle of the movie's content, Johnson had stopped communicating with Flynn and began marketing the documentary on his own. Flynn's attorney, Michael D. Steger of New York, noted that the 'trial testimony revealed that Johnson and Flynn agreed to co-produce the film, to exercise joint control over its making and to divide profits evenly, but they never put their agreement in writing.' He also said that the district court's ruling 'appears to be a case of first impression in the Eastern District of Virginia.' In its decision, the district court rejected a Ninth Circuit joint-authorship test that requires a joint author to show control over creation of the work. See , Aalmuhammed v. Lee , 202 F.3d 1227 (9th Cir. 2000). Instead, adopting the approach of the Second and Seventh Circuits,
the district court emphasized: 'the Ninth Circuit's rule is susceptible to inequitable manipulation. ' The record reflects that Flynn was contractually entitled to exercise control over YMKA and was only prevented from doing so by Johnson's wrongful conduct. It follows that to apply the Ninth Circuit's rule on these facts would violate the sensibly settled maxim that 'no one should profit by his own conscious wrong.”

DMCA Safe-Harbor Bid/Declaratory Suit

The U.S. District Court for the Southern District of California granted a defense motion to dismiss or transfer a suit that sought a declaration that the plaintiff's Internet video-hosting service was entitled to safe-harbor protection under the Digital Millennium Copyright Act (DMCA). Veoh Networks Inc. v. UMG Recordings Inc., 07-CV-1568 W(BLM). Veoh Networks claimed that all the content on its Internet service was consumer-created. 'Plaintiff seeks a far-reaching declaratory judgment that it is not liable for infringing any of Defendant's rights and is entitled to the Section 512(c) safe harbor [of the DMCA],' the district court noted. 'However, because Plaintiff does not reference any specific copyright, even by way of example, the relief requested would necessarily take the form of an advisory opinion. Succinctly, the Court cannot determine whether a safe harbor for copyright infringement exists without knowing which rights are at stake.' The court also emphasized that 'using Section 512 as a sword, rather than a shield, presents particular problems. ' In short, the safe harbor presupposes that a specific allegation of infringement has already been levied. ' Because Defendant filed suit against Plaintiff [in the Central District of California] less than a month after Plaintiff filed the instant action, the Court suspects Plaintiff is really asserting their defense in a forum of their choice.'

File-Sharing Suit/Anti-Trust Counterclaims

A Manhattan federal district court dismissed several anti-trust counterclaims by Lime Wire in a copyright-infringement action that major record labels brought against the peer-to-peer file sharing service. Arista Records v. Lime Group LLC, 06 Civ. 5936(GEL). The district court noted in part: 'Although Lime Wire 'actively solicited licensed content' from 'independent labels and artists' and 'independent retailers/distributors' ' the FAC [First Amended Counterclaims] contains no allegation that Lime Wire ever attempted to obtain or purchase a license from any of the counter-defendants or their respective joint ventures [for licensing online music]. Lime Wire's retail competitors may have 'faced excessive wholesale prices' for licenses as a result of the alleged price-fixing scheme ' but Lime Wire itself has not alleged any facts demonstrating that it suffered such harm. ' To the extent Lime Wire claims that it was an interbrand retail competitor [i.e., by selling different product brands in the same market] of counter-defendants' joint ventures, Lime Wire lacks standing to challenge the retail price-fixing agreement because the FAC contains no allegation that the fixed retail prices were predatory.' But the district court found that Lime Wire has standing to challenge the labels' mandatory licensing for filtering technology. According to the court: 'Lime Wire alleges that counter-defendants concertedly refused to provide it with 'reasonable access' to hashes [i.e., metadata identifiers] of their copyrighted works by requiring it first to seek a license for hash-based filtering technology from Altnet, which allegedly held the proprietary rights to such technology. ' [C]ounter-defendants' mandatory licensing regime inflict[s] direct and concrete antitrust injury on Lime Wire by raising its costs and thus impeding its ability, and the ability of other P2P retailers utilizing hash-based filtering technology, to operate as effective competitors in the digital distribution market.'