Police Use Unconscious Driver and Passenger as Anti-Drug Advertisement

 

On Thursday, September 8th, 2016 Ohio police officers posted photographs of a couple and their son on Facebook[1]. The pictures display a woman and man, unconscious in the front seats of their vehicle, and a four-year-old child awake in the back seat. The city police took these pictures after conducting a traffic stop on September 7th; they had noticed the couple’s car weaving between traffic lanes, and upon stopping the car, noticed “the man’s head ‘bobbing back and forth his speech was almost unintelligible[2].’” James Acord, the driver of the vehicle, informed officers that he was taking the passed out woman, Rhonda Pasek, to a hospital, after which he lost consciousness. An ambulance was called and paramedics administered Narcan, a medication used to block the effects of opioids, particularly during overdose[3].

Ohio has been suffering a major heroin epidemic, which has killed at least twenty-three Ohioans per week, as of April 2016[4]. The East Liverpool, Ohio police cite the epidemic as justification for their inclusion of the photographs of the unconscious couple and the young child in their Facebook post, stating, “We feel it necessary to show the other side of this horrible drug.” They express that “it is time that the non drug using public sees what we are now dealing with on a daily basis…we are willing to fight this problem until it’s gone and if that means we offend a few people along the way we are prepared to deal with that.”[5] Both pictures included in the Facebook post feature the young child looking directly at the camera from the back seat. The child’s face is digitally altered to protect his identity in news articles, yet the pictures in the Facebook post remain unaltered. Many public comments below the police department’s Facebook posting express disapproval of the exposure of the child’s identity.

Not as popular among the Facebook comments, however, is any objection to the invasion of privacy of the man and woman in the front seats of the vehicle. There are two photos in the Facebook post; in one, neither the face of the driver nor passenger is clearly visible, allowing the two to remain basically unidentifiable. However, in the second picture, not only is the camera closer to the adults’ faces, but a police officer is clearly holding back the hair of the passenger so that her face is pointed directly at the camera and clearly visible. If the police department’s objective in posting these pictures was to show the drastic effects of the heroin epidemic, they could have achieved their goal just as effectively without infringing upon the adults’ Fourth Amendment rights. The Facebook post states that the city police department felt the “need to be a voice for the children caught up in this horrible mess.” However, the driver and passenger remained voiceless while being photographed, as they laid unconscious in their vehicle.

The Supreme Court has held that “a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.”[6] The Court in Rakas v. Illinois found it “unnecessary” to decide “whether the same expectations of privacy are warranted in a car as would be justified in a dwelling place…”[7] In Katz v. United States, 389 U.S. 347 (1967), Justice Harlan’s concurrence expressed that an expectation to be free from governmental intrusion must “be one that society is prepared to recognize as ‘reasonable’ in order to deserve the protection of the Fourth Amendment.”[8] It was without a doubt reasonable for the police to stop Acord and Pasek’s vehicle once they noticed Acord’s dangerous driving. It was also reasonable for the police to inquire further once they noticed the condition of both the driver and passenger, and the presence of a young child in the back seat. However, it was beyond reasonableness for the police department to photograph Acord and Pasek while unconscious, to fulfill the objective of creating an anti-drug advertisement on a Facebook page.

It is one thing for police to document a crime scene for later use in prosecution. It is another to publicize, on a public social media site, pictures of these individuals without consent. Facebook’s online help center includes an entire section regarding “reporting photos & videos that violate your privacy rights.”[9] Facebook acknowledges that its website is an extremely public forum where Fourth Amendment rights can easily be violated. The driver and passenger, in this case, were in no condition to express an opinion about their photos being taken. While the two were undoubtedly putting their lives, the life of the young child, and the lives of anyone else driving on the same road at that point in time in great danger, a complete disregard of their personal privacy is nevertheless not warranted.

 

Leigh Solomon is a second-year law student at the Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. She is also a legal intern with the Bet Tzedek Legal Services Clinic and President of the Unemployment Action Center.

[1] City of East Liverpool, Ohio, Facebook (Sept. 8, 2016, 2:09 PM), https://www.facebook.com/cityofeastliverpool/posts/879927698809767.

[2] Chris Boyette, This is the devastating effect of heroin that Ohio city wants you to see, CNN, (Sept. 10, 2016, 2:49 PM), http://www.cnn.com/2016/09/09/health/heroin-effects-police-photo-trnd/index.html.

[3] Julia Jacobo, Ohio Police Post Photo of Adults Appparently Unconsciously With 4-Year-Old in Backseat, ABC News, (Sept. 9, 2016, 9:48 PM), http://abcnews.go.com/US/ohio-police-post-photo-adults-allegedly-overdosed-heroin/story?id=41983034.

[4] Bill Whitaker, Heroin Epidemic Kills at Least 23 Ohioans Each Week, (Apr. 24, 2016), CBS News, http://www.cbsnews.com/news/60-minutes-heroin-epidemic-ohio-bill-whitaker/.

[5] City of East Liverpool, Ohio, supra note 1.

[6] Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978).

[7] Id.

[8] Katz v. United States, 389 U.S. 347 (1967).

[9] Facebook, https://www.facebook.com/help/428478523862899/. (last visited Sept. 11, 2016).

Colin Kaepernick is being Un-Patriotic and We Should be Thankful for it

Colin Kaepernick, back-up quarterback for the San Francisco 49ers, most likely knew that he would not face legal consequences when he decided to indefinitely sit (or kneel) during each pregame performance of the national anthem. Kaepernick also knew that it was a risk that could jeopardize the future of his career. The First Amendment prevents our government from punishing individuals based on their speech, but employers are not bound by this same restriction. When reporters asked Kaepernick if he would be cut from his team as a result of his decision, Kaepernick answered, “If I do, I know I did what’s right and I can live with that at the end of the day.” The NFL is notorious for blackballing athletes who carry “baggage”, so by refusing to stand during the Star Spangled Banner, Kaepernick is jeopardizing not only his current job, but his ability to play for any other NFL team. Whether you agree with him or not, Kaepernick’s action should remind us to be thankful for our freedom to do the “unpatriotic.”

On August 27th Kaepernick refused to stand for the national anthem before a pre-season home game against the Green Bay Packers. Kaepernick explained afterwards that he “was not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” To Mr. Kaepernick, the situation “is bigger than football” adding that “it would be selfish on my part to look the other way. There are bodies in the street and people are getting paid leave and getting away with murder.”[1] Since then, he has vowed to continue his protest until significant changes occur in relations between police and the black community. [2]

Unlike Muhammad Ali, who faced incarceration when he protested the Vietnam War by refusing Army induction, Kaepernick does not have to worry about legal retaliation. Through cases like West Virginia State Board of Education v. Barnette, our courts have long held that laws compelling individuals to exhibit patriotism are unconstitutional and in violation of the First Amendment.[3] Although many consider Kaepernick’s actions un-American, as Justice Jackson explained in Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”[4] While offensive to many, especially veterans, Kaepernick’s right to kneel should serve as a reminder of our uniquely American liberties.

Unfortunately for Mr. Kaepernick, his first amendment protection only goes so far. The 49ers are free to cut him, and no team is obliged to sign him if the 49ers do. NFL teams are often reluctant to take risks on players who display anti-social or unconventional behavior. Ray Rice, former running back for the Baltimore Ravens, has been unable to make a roster since video footage surfaced of him beating his wife. There are other situations, however, where the NFL’s self-policing culture ruins careers unjustly. Some players claim that they have been cut and unable to find a new team because of their sexual orientation.[5] There is a strong bond between the military and the NFL. All thirty two teams support the NFL’s Salute to Service campaign. As a result, Kaepernick may soon find himself on the outside looking in.[6] If the 49ers decide to release Mr. Kaepernick, there is good chance that his NFL career will effectively be over. Kaepernick currently makes around $19,000,000 per year[7] so the old cliché “put your money where your mouth is” is quite apropos. Although he need not worry about legal action, his crusade is courageous and comes with legitimate risk.

Over the past few weeks, millions have developed opinions on the matter. Some think he is brave, but many others have legitimate gripes. People think that he is disrespecting the country whose military has ensured his freedom and ability to earn millions of dollars per year. Without our soldiers we would not have an NFL, a flag, or even the Star Spangled Banner. But our soldiers’ sacrifice is not to allow Colin Kaepernick to play football, it is to protect his right to kneel and your right to boo him if you don’t like it.

Sam Martin is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal.

[1] Wyche, Steve, Colin Kaepernick explains why he sat during national anthem, NFL (Aug. 28, 2016 4:33 pm), http://www.nfl.com/news/story/0ap3000000691077/article/colin-kaepernick-explains-why-he-sat-during-national-anthem.

[2] Wagoner, Nick, Colin Kaepernick takes knee for anthem; joined by teammate Eric Reid, ESPN (Sept. 2, 2016), http://www.espn.com/nfl/story/_/id/17444691/colin-kaepernick-san-francisco-49ers-sits-again-national-anthem.

[3] Sammin, Kyle, The First Amendment Is A Double-Edged Sword For Kaepernick And Rapinoe, The Federalist (Sept. 7, 2016), http://thefederalist.com/2016/09/07/first-amendment-double-edged-sword-kaepernick-rapinoe/.

[4] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[5] Kluwe, Chris, I Was An NFL Player Until I Was Fired By Two Cowards And A Bigot, Deadspin (Jan. 2, 2014 12:52 pm), http://deadspin.com/i-was-an-nfl-player-until-i-was-fired-by-two-cowards-an-1493208214.

[6] NFL, http://www.nfl.com/salute#campaign (last visited Sept. 8, 2016).

[7] Sportrac, http://www.spotrac.com/nfl/san-francisco-49ers/colin-kaepernick-7751/ (last visited Sept. 8, 2016).

Where have all the IP Firms gone?

In following with the recent trend, earlier this week yet another one of the previously prominent Intellectual Property Boutiques, Kenyon & Kenyon moved its practice and joined Andrews Kurth, a full-service Texas based firm.[i] As a current law student hoping to practice IP law after graduation this trend is something I have been monitoring closely.

From my first day in law school, I could confidently answer the question of what type of law I wanted to practice after graduation: patent law. However, where I wanted to practice was a much tougher question. Now, when I say where I do not mean the question of whether I want to be in New York or California. Where to me means whether I want to be at a full-service law firm or in an IP boutique – and this was something I was very unsure of.

When I initially thought about where I wanted to practice law after graduation an IP boutique seemed ideal. I knew if I went to a boutique I would work alongside like-minded people and be guaranteed the opportunity to work in IP. These two things sounded great, especially since I was concerned that at a general practice firm I could possibly end up in a different department due to firm needs. Yet, the more I spoke to people in the field the more I began to rethink this decision.

This past summer while going through the OCI process, I learned a lot about the changing landscape of the IP market. When I initially applied to firms I still did not know what I was looking for so I applied to both boutique and general practice firms. However, once I began the actual interview process I truly began to understand the difference between these two types of firms. Since I know (or at least think I know) that I want to work in patent litigation, all my interviews were with attorneys in that practice group when I met with general practice firms. During the interviews one question I made sure to ask each interviewer was “why did you choose to come here?” Much to my surprise, almost every partner to whom I asked this question started her answer the same way. “Well I started at a boutique, but then…” I quickly began to realize that less than twenty years ago if someone wanted to do IP work their options were almost exclusively IP boutiques.

However, more recently, as IP has become a “hot” area of the law, the full service firms have wanted to get in on this lucrative business and have started IP departments of their own. Typically, the way the big firms develop this practice group is by swallowing up a boutique firm.[ii] Other times, the firm will just bring on one or two key partners from a boutique firm. Although, once a few key partners leave a small boutique the firm may struggle for business and then close down even if they aren’t completely merging into a general practice firm. Almost every attorney at a general practice firm I met with described to me one of these alternatives when telling me about how they came to join their firm. These stories, along with some of the general stories about the differences between boutiques and general practices helped inform me a lot about the future of boutique firms.

Another recurring theme I heard throughout the interview process was that clients increasingly desire to choose general practice firms over IP boutiques for their IP work now that they have this option because clients prefer a one-stop-shop for all legal needs.[iii] This is something general practice firms can do for their clients that boutiques often cannot provide, which gives general practice firms an edge when trying to attract new clients. Given that many general practice firms now have strong and growing IP practices, and given this competitive edge that they have over the boutiques by being able to serve any and all of the client’s current or future needs, clients are often leaving the boutiques and taking their business to the big firms. Therefore, this trend has led the boutiques to try and merge with general practice firms because they often do not have enough work to remain independent.

Now, looking at the market of IP firms that have been able to remain independent – the recipe for success seems to be to grow big themselves.[iv] In order to thrive in the current market, it seems that if a firm wants to remain IP only they have to lose their “boutique” nature. These firms (such as Fish & Richardson and Finnegan) have hundreds of attorneys and truly specialize and attract top rate IP attorneys so that they are able to continue to attract clients. Yet, absent this small category of thriving IP only firms, it seems the few number of boutiques that are still around today may be gone in a few years time. As a result, it is likely that law students in my position will not even face the decision between boutique and general practice as general practice will likely be the only option to choose.

For further discussion about what this recent merger means for the remaining boutiques also see – http://www.worldtrademarkreview.com/Blog/detail.aspx?g=63c6552a-ed60-407d-bcc2-4d86e05d2130

***It is important to note that this article is not intended to suggest that many of the very small IP firms (with typically 20 and under attorneys) will disappear from the market, or that when law students are trying to decide what to do after law school that big law firms will be their only option. The market does not currently suggest that the small IP firms will disappear entirely or general counsel positions will disappear. Rather, this article’s goal and purpose is to discuss the disappearance of the previously prominent, but now shrinking number of mid-size IP firms that have been absorbed by the large general practice firms.***

Elana Minkoff is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Journal. She is an active member of the Intellectual Property Law Society and looks forward to a career in patent litigation (at a general practice firm) after graduation.


[i] Randazzo, Sara, Intellectual Property Law Firm Kenyon to Close, The Wall Street Journal (Aug. 29, 2016 5:11 pm), http://www.wsj.com/articles/intellectual-property-law-firm-kenyon-kenyon-to-close-1472505113

[ii] Simpson, Jake, 3 Firms Use Mergers for Game-Changing IP Partner Growth, Law360 (Nov. 16, 2015 9:54 PM), http://www.law360.com/articles/727484/3-firms-use-mergers-for-game-changing-ip-partner-growth

[iii] Coe, Erin, IP Slowdown Sets Stage for More Firm Combons, Law360 (Feb. 24, 2016 1:26 PM) http://www.law360.com/articles/762321/ip-slowdown-sets-stage-for-more-firm-combos

[iv] Randazzo, Intellectual Property Law Firm Kenyon to Close, The Wall Street Journal (Aug. 29, 2016 5:11 pm), http://www.wsj.com/articles/intellectual-property-law-firm-kenyon-kenyon-to-close-1472505113

Not Happy Together: The Turtles’ Epic Quest for Performance Royalties & the Case for Federalizing Pre-1972 Sound Recordings

Tatsuya Adachi is Editor-in-Chief of the Cardozo Arts & Entertainment Law Journal, Vol. 34, and J.D. Candidate, 2016, Benjamin N. Cardozo School of Law. 

 

Introduction

Flo & Eddie—performers of the Turtles’ hit record “Happy Together”—have recently been engaging in a successful spree of $100 million class action lawsuits against digital broadcaster Sirius XM. With cases in New York, California, and Florida federal courts, the basis for these suits is Sirius XM’s underpayment of royalties and unlicensed public performances of pre-1972 sound recordings. The significance of the year 1972 is that sound recordings were first accorded federal copyright protection that year, but on an exclusively prospective basis. Sirius XM does not dispute the fact that it does not currently pay rights holders for these vintage recordings. In fact, it takes the position that while it may be required under federal law to pay royalties for the public performance of post-1972 sound recordings, it is not required to do so for pre-1972 sound recordings. The reason why requires an examination into a segment of the history of U.S. copyright law.

Part I of this Article provides the legal backdrop for Sirius’ position on pre-1972 sound recordings, in particular why they are not covered under federal law. Part II details Flo & Eddie’s successful lawsuits against Sirius in New York and California which each turn on state—not federal—law. Part III illustrates some of the troublesome downstream effects of these lawsuits, including various policy implications. Finally, Part IV proposes an amendment to the U.S. Copyright Act that would bring pre-1972 sound recordings under the ambit of federal protection.

 

I.     Legal Foundations: Pre-1972 Sound Recordings, Generally

A.    The Sound Recording Amendment of 1971

Congress passed the Sound Recording Amendment to the U.S. Copyright Act in late 1971, making sound recordings fixed on or after February 15, 1972 eligible for federal copyright protection for the first time.[1] Like many of Congress’ amendments to the U.S. Copyright Act, this was a legislative response to technological innovation that enabled a higher volume of music piracy than was previously practicable. Specifically, by 1971 there was a growing concern in Congress that the advent of the home use of audiocassette tapes and recorders meant the unauthorized reproduction and distribution of unlicensed recordings could take place on a commercial scale for the first time ever.[2] Indeed, Congress estimated in the statute’s accompanying House Report that the annual volume of pirated music sales was “in excess of $100 million,” as compared to $300 million annually from legitimate audiocassette tape sales.[3]

The Sound Recording Amendment was further motivated by the lack of uniformity among state law remedies for rights holders in sound recordings.[4] In the 1960s, some states passed criminal laws for the commercial reproduction and distribution of sound recordings,[5] and by now nearly all states have such criminal piracy laws protecting rights holders.[6] A number of states also have relevant civil statutes,[7] and others provide limited remedies under unfair competition law.[8]

B.    Applicability of Federal Copyright Law to Pre-1972 Sound Recordings

Before long, the U.S. Supreme Court addressed the question of whether pre-1972 sound recordings were subject to state or federal law in the seminal case Goldstein v. California,[9] deciding that pre-1972 sound recordings are covered only by state law. The Court held that California’s record piracy statute regarding pre-1972 sound recordings was not preempted by federal law under its decisions in Sears, Roebuck & Co. v. Stiffel Co.,[10] and Compco Corp. v. Day-Brite Lighting.[11] Pursuant to the Supremacy Clause,[12] the Court established that “[n]o comparable conflict between state law and federal law arises in the case of recordings of musical performances,” therefore “no reason exists why the State should not be free to act” in regulating pre-1972 sound recordings.”[13] In 1998, Congress codified the Goldstein decision in Sections 301(c) and (d) of the U.S. Copyright Act, by explicitly limiting federal preemption of state statutes and common law as they relate to pre-1972 sound recordings until 2067.[14]

 

II.    Flo & Eddie’s Lawsuits Against Sirius XM

Part II details two recent cases that address how federal district courts have applied state law to fill the gap in federal law described in Part I.

A.    The California District Court Decision

In September 2014, Flo & Eddie earned their first victory against Sirius over the nonpayment of performance royalties (allegedly amounting to $100 million), when a federal district court in California granted their summary judgment motion on the issue of the existence of performance rights for sound recordings under state law.[15] In reaching its decision, the court looked to the language of California’s copyright statute, which makes explicit mention of the treatment of pre-1972 sound recordings, providing: “The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047[.]”[16]

The court’s analysis regarding public performance rights under the California Code turned on its interpretation of the scope of “exclusive ownership” rights.[17] Invoking a familiar statutory interpretation maxim, the court “presumed the Legislature included all the exceptions it intended to create.”[18] In turn, the court construed the meaning of “exclusive ownership” to infer the state legislature’s intention not to further limit ownership rights beyond the plain language of the statute, “otherwise it would have indicated that intent explicitly.”[19] The decision confirms that Sirius XM and other digital broadcasters will have to license pre-1972 sound recordings broadcasted in California.

B.    The New York District Court Decision

Just two months later, Flo & Eddie gained another victory in a separate $100 million class action suit, this time in New York’s Southern District.[20] As an initial matter, the court established that Flo & Eddie owned common law copyrights in their sound recordings under New York law.[21] Thus, the court recognized, as did the California court, that the theory of liability turned on the question of whether the scope of common law rights included a public performance right requiring Sirius to license and pay royalties for pre-1972 sound recordings.[22] The court acknowledged this was a matter of first impression and looked to New York’s historical treatment of performance rights in plays and films, each of which have long enjoyed public performance rights under the common law.[23] Thus, according to the court, “general principles of common law copyright dictate that public performance rights in pre–1972 sound recordings do exist.”[24]

 

III.   Downstream Effects & Policy Considerations

Part III examines the foreseeable, negative downstream effects of the cases discussed in Part II, and provides the policy basis for this Article’s proposal to bring pre-1972 sound recordings under the ambit of federal copyright law.

A.    The Litigation Bandwagon

One of the primary foreseeable consequences of these decisions is a litigation bandwagon effect. While Flo & Eddie recently lost summary judgment in a similar class action suit in Florida, there is ample evidence that litigation over performance royalties in pre-1972 sound recordings will only increase. To date, in addition to the near-certain appeals of the three Turtles cases, the major recording labels in the U.S. have mounted similar attacks against Pandora, another digital broadcaster.[25] SoundExchange, a rights management organization, also filed suit against Sirius XM for $100 million dollars in unpaid royalties, recently winning $90 million in settlement.[26]

To say that litigation over performance royalties in pre-1972 sound recordings has become unruly would be an understatement. That these disputes are all being litigated simultaneously, under a veritable hodgepodge of state statutory and common law, lends further credence to the notion that the current legal environment surrounding performance rights in pre-1972 sound recordings is unstable. Litigation has become an inefficient tool for dispute resolution between digital broadcasters and owners of pre-1972 sound recordings. It is slow, burdensome, and costly not only for the broadcasters, but for Flo & Eddie as well. Therefore, significant resources are currently being expended in a manner that creates a zero-sum game between the parties.

B.    Access and Preservation Concerns

The current legal environment described above also threatens valuable access and preservation policy principles as they relate to pre-1972 sound recordings. It was widely rumored that Sirius XM’s threat to pull all pre-1972 sound recordings from their services to avoid further disputes precipitated—at least in part—the Second Circuit’s decision to grant Sirius XM’s appeal of the Southern District’s denial of its summary judgment motion. Pandora has also made a similar declaration.[27] Indeed, if the solution adopted by the digital broadcasting industry is to pull pre-1972 content altogether, the negative consequences are two-fold: (1) the public will be deprived of access to culturally valuable content (imagine a world where the next generation has no access to Motown and the Beatles); and (2) rights holders in pre-1972 sound recordings will have effectively shut themselves out from the capture of future performance royalties. Indeed, the U.S. Copyright Office agrees that preservation and access concerns are a major driving force for the need for federal copyright reform in this respect.[28]

C.    A Licensing Mess, Regardless

Even if digital broadcasters elect not to pull pre-1972 content from their broadcasts, the current gap in federal law would result in a licensing mess characterized by prohibitively high administrative costs. Under federal copyright regulations, the Copyright Royalty Board has designated SoundExchange as the rights management organization to collect and distribute performance royalties.[29] Under this system, royalties are calculated according to statutorily-set rates, and payment and distribution is administered via a single entity.[30] However, because pre-1972 sound recordings currently fall outside of this federal regulatory scheme, digital broadcasters will be required to negotiate separate licenses with each individual rights holder per recording.[31] License negotiation will likely also involve the analysis of each of the fifty states’ individual statutes and common law doctrines regarding performance rights for sound recordings. Therefore, from the broadcasters’ perspective, pulling content altogether remains an economically more attractive alternative to such a licensing scheme.

 

IV.   Proposal: Congress Must Federalize Pre-1972 Sound Recordings

Part IV demonstrates that the policy concerns described in Part III would be significantly alleviated by amending the U.S. Copyright Act to bring pre-1972 sound recordings under federal protection.

One potentially positive downstream effect of the problems described above is that the they have highlighted the need for federal reform in the eyes of Congress. Indeed, in May 2014, Congress introduced the Respecting Senior Performers as Essential Cultural Treasures Act (RESPECT) Act,[32] which would largely require digital broadcasters to treat pre-1972 sound recordings the same as post-1972 sound recordings.

This Article argues that federal legislation via the RESPECT Act, or a similar legislative bill, is necessary in order to eliminate the troublesome downstream effects described above. The reasons are three-fold: First, because guidance on pre-1972 sound recordings would be provided by a single clear and unambiguous source of law (the potential federal statute), the litigation bandwagon will come to a halt. Digital broadcasters will be clear on their duties to rights holders, and performance royalties will no longer require messy judicial analysis of state law. Second, because pre-1972 sound recordings would be part of the federal regulatory scheme, the licensing mess described above will be eliminated and therefore streamlined under the terms of the federal regulations. Third, the elimination of the licensing mess will alleviate access and preservation concerns because licensing will no longer be prohibitively costly to administer.

 

Conclusion

It is without a doubt that while owners of pre-1972 sound recording have asserted their rights in their works through proper judicial channels, the current state of the surrounding legal environment is fairly unstable. That pre-1972 rights holders have a judicially recognized basis for engaging in massive litigation may be beside the point. What is troubling about the lack of stability under the current system is the series of negative, downstream effects that are foreseeable due to this type of litigation strategy. Therefore, in order to eliminate these effects, and in order to benefit both digital broadcasters and pre-1972 rights holders in the long run, legislation—not litigation—is the proper avenue to resolve disputes of this nature.

 

[1] Pub. L. No. 92-140, § 3 (1971), 85 U.S. Stat. 391, 392 (1971).

[2] H.R. REP. NO. 92-487, at 2 (1971).

[3] Id.

[4] Id.

[5] In 1967, New York became the first state to make the commercial reproduction and distribution of sound recordings a criminal offense, followed by California in 1968. See U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings: A Report of the Register of Copyrights 20 n.80 (2011), http://www.copyright.gov/docs/sound/pre-72-report.pdf (citations omitted).

[6] See Melville B. Nimmer and David Nimmer, 2-8C Nimmer on Copyright § 8C.03, n.9.1 (Matthew Bender, rev. ed.) (citing U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings: A Report of the Register of Copyrights 22 n.82 (2011), http://www.copyright.gov/docs/sound/pre-72-report.pdf) (noting that Indiana and Vermont are the only states without such statutes).

[7] See, e.g., Cal. Civ. Code § 980(a)(2) (2011) (state protection over sound recordings until 2047); Colo. Rev. Stat. § 18-4-601(1.5) (2011) (“[N]o common law copyright shall exist for a period longer than fifty-six years after an original copyright accrues to an owner.”).

[8] U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings: A Report of the Register of Copyrights 11 (2011) (citations omitted); see, e.g., A&M Records, Inc. v. M.V.C. Distributing Corp., 574 F.2d 312 (6th Cir. 1978); Victor Talking Mach. Co. v. Armstrong, 132 F. 711 (S.D.N.Y. 1904); Capitol Records v. Erickson, 2 Cal. App. 3d 526 (1969); Capitol Records v. Spies, 264 N.E.2d 874 (1970); Columbia Broadcasting System Inc. v. Melody Recordings, Inc., 341 A.2d 348 (1975); Liberty/UA, Inc. v. Eastern Tape Corp., 180 S.E.2d 414 (1971).

[9] 412 U.S. 546 (1973).

[10] 376 U.S. 225 (1964).

[11] 376 U.S. 234 (1964).

[12] “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

[13] Goldstein v. California, 412 U.S. 546, 570 (1973).

[14] 17 U.S.C. § 301.

[15] Flo & Eddie Inc. v. Sirius XM Radio Inc., No. CV 13-5693 PSG RZX, 2014 WL 4725382, at *2 (C.D. Cal. Sept. 22, 2014) reconsideration denied, No. CV 13-5693 PSG (RZX), 2015 WL 9690320 (C.D. Cal. Feb. 19, 2015) [hereinafter Flo & Eddie (CA)].

[16] Cal. Civ. Code § 980(a)(2).

[17] Flo & Eddie (CA), 2014 WL 4725382, at *5.

[18] Id. at *5 (citing Reynolds v. Reynolds, 54 Cal.2d 669, 681 (1960)).

[19] Id.

[20] Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 62 F. Supp. 3d 325 (S.D.N.Y. 2014) reconsideration denied, No. 13 CIV. 5784 CM, 2014 WL 7178134 (S.D.N.Y. Dec. 12, 2014) stay granted, motion to certify appeal granted sub nom. Flo & Eddie, Inc v. Sirius XM Radio Inc., No. 13 CIV. 5784 CM, 2015 WL 585641 (S.D.N.Y. Feb. 10, 2015) and stay granted, motion to certify appeal granted sub nom. Flo & Eddie, Inc v. Sirius XM Radio Inc., No. 13 CIV. 5784 CM, 2015 WL 585641 (S.D.N.Y. Feb. 10, 2015) and leave to appeal granted, No. 15-497, 2015 WL 3478159 (2d Cir. May 27, 2015).

[21] Id. at 336.

[22] Id.

[23] Id. (citations omitted).

[24] Id. at 334.

[25] Ben Sisario, SiriusXM Settles Royalty Dispute Over Old Recordings, N.Y. Times (June 26, 2015), http://www.nytimes.com/2015/06/27/business/sirius-xm-settles-royalty-dispute-over-old-recordings.html?_r=0.

[26] Ben Sisario, Pandora and Big Labels Settle Suit for $90 Milion, N.Y. Times (Oct. 22, 2015), http://www.nytimes.com/2015/10/23/business/media/pandora-and-big-labels-settle-suit-for-dollar90-million.html.

[27] See Leigh F. Gil, Heather R. Lieberman, Gregory S. Stein, Time to Face the Music: Current State and Federal Copyright Issues with Pre-1972 Sound Recordings, Leavens, Strand & Glover, LLC (July/Aug. 2014), http://lsglegal.com/index.php/articles/42-uncategorised/280-time-to-face-the-music-current-state-and-federal-copyright-law-issues-with-pre-1972-sound-recordings (citation omitted).

[28] U.S. Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings: A Report of the Register of Copyrights 91–100 (2011), http://www.copyright.gov/docs/sound/pre-72-report.pdf.

[29] See 37 C.F.R. § 380.4.

[30] Id.

[31] See supra note 27; see also Steve Gordon & Anjana Puri, The Current State of Pre-1972 Sound Recordings: Recent Federal Court Decisions in California and New York Against Sirius XM Have Broader Implications Than Just Whether Satellite and Internet Radio Stations Must Pay for Pre-1972 Sound Recordings, 4 NYU J. Intell. Prop. & Ent. L. 336, 354 (2015).

[32] RESPECT Act, H.R. 4772, 113th Cong. (2014).

California Resale Royalty Act Struck Down

On Monday, April 11th, U.S. District Court Judge Michael Fitzgerald dismissed a lawsuit brought by a number of artists to recover resale royalties from auction houses that sold their art. The decision is the latest chapter in a legal battle over the California Resale Royalty Act and likely marks its end.

First passed in 1976, the California Resale Royalty Act, Cal. Civ. Code §986, was a groundbreaking statute for the United States. Inspired by similar European legislation, the act incorporates the concept of droit de suite, which is an artist’s enduring moral and economic right to their work. The act requires art sellers to give artists five percent of the resale price if the “seller resides in California or the sale takes place in California.” The act places the burden on the seller to both find and pay the artist these royalties. If the seller is unable to locate the artist within ninety days, the burden transfers to the California Arts Counsel. If the counsel is unable to locate the artist within seven years, it may use the unclaimed funds “for use in acquiring fine art.” These rights exist for the artist’s life, and can also be exercised by the artist’s estate or heirs up to twenty years after the artist’s death.

The suit was brought by a number of California artists, including the estate of sculptor Robert Graham and actress Angelica Huston, against defendants Christie’s Inc., Sotheby’s Inc., and eBay, seeking resale royalties from sales of their art that the defendants performed out of state.

The California Resale Royalty Act was severely limited last year when the case was heard by the Ninth Circuit Court of Appeals. The court found the act to be in violation of the Dormant Commerce Clause, as it allowed California to impose its laws on sales that were made outside of the state. However, instead of striking down the law in its entirely, the court severed the statute, limiting its control to only art sales that occur in California.

Monday’s decision finishes off what remained of the law. In his decision, Judge Fitzgerald held that the Copyright Act of 1976 preempted the California Resale Royalty Act. In particular, the judge upheld the longstanding “first sale doctrine,” which “provides that ‘once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.’” Therefore, downstream sales of art cannot be subjected to the resale royalty requirements imposed by the California law. Judge Fitzgerald emphasized that this doctrine is an important one, as it “creates robust secondary markets” by shifting “the market power away from copyright holders and toward competition.”

The plaintiffs will likely appeal the decision, which would bring the case back to the Ninth Circuit.

Resale royalty rights have fared better in Europe where they have an extensive history. Artists’ rights first evolved during the renaissance as artists began to develop extensive reputations independent of their patrons. During the eighteenth and nineteenth centuries, France became a strong supporter of these ideals and established four distinct rights for artists: 1) the right to attribution, 2) the right to maintain the integrity of their art, 3) the right to disclose their art, and 4) the right to withdraw or modify their work after disclosure. The droit de suite grew out of this legacy, and was first codified in France in 1920. It has since been included in the Berne Convention for Literary and Artistic Works. Interestingly, the United States is a member of the convention, despite it never having passed federal resale royalty legislation. Most recently, the European Union formally adopted resale royalty rights by passing Directive 2001/84/EC. However, even European resale royalty rights have been controversial. The United Kingdom recently experienced a sudden decline in art sales. Some observers blame this development on resale royalty laws, which they argue are pushing art sales to the United States and Asia at the expense of the local art market.

Although Monday’s decision is a significant setback for artists’ resale royalty rights in the United States, the debate will continue. Ever since the California Resale Royalty Act was first passed in 1976, there has been constant pressure on Congress to incorporate the droit de suite into federal law. If lobbyists are to continue to fight for such a law, they must do so without the help of the California Resale Royalty Act.

 

Anthony Prinzivalli is a second-year law student at the Benjamin N. Cardozo School of Law and a Staff Editor of the Arts & Entertainment Law Journal. He will be a Notes Editor for Volume 35 of the AELJ.

 

Sources and Further Reading:

  1. http://labusinessjournal.com/news/2016/apr/12/federal-ruling-puts-state-artist-royalty-law-jeopa/.
  2. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=986.
  3. http://www.scotusblog.com/wp-content/uploads/2015/09/12-56067.pdf.
  4. http://cdn2.hubspot.net/hubfs/878449/document.pdf?t=1460560905154.
  5. http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1297&context=elr.
  6. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0084:EN:HTML.

http://www.spectator.co.uk/2016/03/why-britains-world-class-galleries-and-auction-houses-could-benefit-from-brexit/.

Traditional Fantasy Sports v. DFS, and Why the Former is Escaping Scrutiny

On November 10, 2015, New York Attorney General Eric Schneiderman (pictured) ordered daily fantasy sports (DFS) sites like FanDuel and DraftKings to immediately cease New York operations on the grounds that their businesses constitute illegal gambling. The general public, as well as the companies themselves, believed DFS to be an entirely legal form of fantasy sports wagering. Although discourse has arisen about the legality of DFS, traditional fantasy sports seem to have escaped scrutiny by both Schneiderman and the general public.

Fantasy sports, playable online, have been in existence for two decades. The traditional sports include season-long wagers, mostly between friends and colleagues, which can result in a one-time monetary payout in a sum of money limited to what was provided by these same friends and colleagues. Fantasy football will be our focus: a game-type that consists of about four months of play by up to twenty players. Traditional fantasy football has become a common household activity, and although money may be exchanged, it is perceived in the same “gambling” light as picking a box at a Super Bowl party. This perception used to be matched by a lack of enforcement.

In 2006, however, the federal legislature addressed this gray area by enacting the Unlawful Internet Gambling Enforcement Act (UIGEA). This act, while simultaneously enforcing restrictions on illegal online gambling, carved out an exception for fantasy sports—§ 5362(1)(E)(ix) of the UIGEA makes lawful “participation in any fantasy or simulation sports game….” Following this, DFS sites jumped on the opportunity to change the landscape of fantasy sports wagering. This landscape changed from solely traditional fantasy sports to a distinction between traditional and DFS.

The meteoric rise of DFS sites like Fanduel (first paying customer in 2009 and mega-partnership with NBC in 2013) is attributable to an entirely different fantasy sports experience. On DFS sites, payouts can come within 24 hours of the wager, and the winnings consist of money put up by thousands of other players, not just friends and colleagues. Players can place bets daily and weekly, as opposed to the traditional multiple-month wager lifespan. DFS’s short wager lifespan is the source of its popularity. A short lifespan allows fantasy enthusiasts to put up more money more often, and fantasy amateurs, who otherwise could not complete a season-long activity, to play sporadically. However, this short lifespan also works against DFS in unearthing two arguments that call for the illegalization of DFS.

First, from a public policy standpoint, this ability to put up more money more often awakens the anti-gambling fervor that some states hold. Supporters of Mr. Schneiderman, and those against DFS, claim that the exception carved out in the UIGEA was meant, in the context of legislative intent, to protect only to traditional fantasy sports games and not the lucrative expanse that DFS has become. The second argument, the legal argument used to protect policy, is that the short timespan of wagers opens up the all-powerful game of skill v. game of chance argument. Game of skill v. game of chance is the discourse that is used by the judiciary and legislature to determine whether or not different gambling games are considered legal or illegal. Skill-based games are awarded designation as the former, and therefore have a stronger legal argument of legality.

Therefore, the question becomes whether or not DFS are based on skill or chance in relation to traditional fantasy sports – specifically, in New York, the question becomes whether or not a material issue of chance exists in DFS. Supporters of the AG will claim that more chance exists in DFS than traditional games because of the difference in both the length of the wager and the amount of action taken by players. Keeping with our football base, a traditional season would consist of: a) drafting athletes for your team; b) selecting which of these athletes to play, over others that you own, seventeen times a season; c) replacing athletes who become injured or unproductive throughout the course of the season with other athletes not owned by competing teams; d) trades with other teams; and more. Conversely, a DFS wager consists solely of picking one team, from an unlimited amount of athletes, for one game each. Due to the fact that more action is required by the player in traditional games, the argument rests that more skill is required to end the season victorious traditionally as opposed to ending the week victorious in DFS. How rock solid is this reasoning?

Well, the same exact factors raised above that lend credibility to the argument that traditional games have less chance and take more skill than DFS, can also be used to argue just the opposite: a) as for the draft, the players can spend as much time as they want creating a skill-based strategy to get the best athletes, but if other teams happen to by chance take those athletes right before you, skill is thrown out the window by chance; b) the season consists of seventeen games, but a team can win the first sixteen, by chance lose the last one, and not win any money at all; c) one needs skill to replace injured or unproductive athletes, but any injury itself is a direct result of chance; d) trading with other teams takes the skill of negotiation and team building, but one player can collude with another to create an unfair advantage through trading. None of these listed sources of chance exist in DFS. Therefore, the argument that traditional games take more skill than DFS is suspect.

Where does this leave us? In reality, the legal arguments that are going to be made will not be a distinction between traditional and DFS, but instead of the legality of DFS alone. Does this or does this not raise questions about the legality of traditional fantasy sports? If DFS is found in New York State to be materially based on chance, and therefore illegal, do traditional games also become illegal? Regardless, this entire conversation would be perplexing in the questioning of the legality of DFS, but not the same questioning of traditional games.

DFS sites have been operating under the true belief that they are legal forms of gambling, and now their legality is being questioned by Mr. Schneiderman. Why are traditional fantasy sports left out of the conversation? Food for thought.

 

Michael Kar is a Candidate for Juris Doctor, 2017, at the Benjamin N. Cardozo School of Law. At Cardozo, Michael is a member of the ADR Competition Team as well as a Staff Editor for the Cardozo Arts & Entertainment Law Journal. He is currently interning in the field of matrimonial law and mediation. https://www.linkedin.com/in/michaelkar

 

Sources:

DFS shut down: http://www.nytimes.com/2015/11/11/sports/football/draftkings-fanduel-new-york-attorney-general-tells-fantasy-sites-to-stop-taking-bets-in-new-york.html?_r=0

UIGEA: https://www.fdic.gov/news/news/financial/2010/fil10035a.pdf

Daily Fantasy Café Blog: https://www.dailyfantasycafe.com/academy/undergraduate/is-daily-fantasy-sports-legal

Regulating Crypto-Currencies

Powerball fever recently struck the nation. An estimated $1.5 billion jackpot had everyone talking. Hoping. Dreaming. With a single Powerball ticket cost at $2, one can imagine saving each and every dollar in order to purchase a ticket at a chance to win the big prize. What was new this time around? Individuals were able to purchase Powerball tickets with bitcoin.[1] JackPocket, a mobile lottery ticket application, “integrated bitcoin payments into its offering…allow[ing] users to buy Powerball tickets.”[2] JackPocket CEO Peter Sullivan believed that this move would “attract more affluent and tech-savvy consumers to buy more lottery tickets.”[3]

One may ask, what is the big deal that there is something else out there one can buy with bitcoin? It is important because the use of bitcoin continues to expand despite recent discussion and analysis of the regulatory framework of bitcoin. In the United States, there have been a number of steps taken at aiming to regulate bitcoin. New York adopted the BitLicense[4] making it “the first US state to formally launch a custom-made regulatory approach to bitcoin and digital currencies.”[5] Other regulatory bodies such as the U.S. Securities and Exchange Commission[6] (SEC) and the United States Commodities Futures Trading Commission[7] (CFTC) have either indirectly or directly attempted to assert that bitcoin is a currency[8] or a commodity,[9] respectively. Presumably, this would allow these different regulatory bodies, amongst others, to have some authority at attempting to regulate bitcoin.

As with New York, the SEC, and CFTC, other states, agencies, and regulatory bodies are attempting to regulate bitcoin in their own way.[10] If one were to look from an even broader perspective, there are even changes worldwide. Recently “Russia took a step…that would effectively ban the use of digital currencies like bitcoin domestically.”[11] Additionally, the “UK Treasury has announced a series of initiatives dealing with digital currency”[12] which illustrates the “government’s first major attempt to grapple with the regulatory…issues surrounding digital currencies.”[13]

All in all, it seems fair to say that there are a number of governments and agencies, worldwide, which are evaluating regulatory measures geared toward digital currencies such as bitcoin. The question then becomes, do these additional uses for bitcoin put it and other digital currencies in danger of becoming heavily regulated, more so than they would be otherwise?

Sumit Agarwal is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal.

 

[1] For a basic understanding of bitcoin see What is Bitcoin?, CoinDesk (last updated Mar. 20, 2015), http://www.coindesk.com/information/what-is-bitcoin/.

[2] See Pete Rizzo, Tickets for $1.5 Billion Powerball Jackpot Now Selling for Bitcoin, CoinDesk (Jan 13, 2016, 6:21 PM), http://www.coindesk.com/tickets-1-5-billion-powerball-jackpot-bitcoin/.

[3] Id.

[4] See e.g., Stan Higgins, NY Bitcoin Businesses Now Have 45 Days to Apply for BitLicense, CoinDesk (June 24, 2015, 8:42 PM), http://www.coindesk.com/ny-bitcoin-business-45-days-bitlicense.

[5] Id.

[6] For an understanding of the SEC’s responsibilities, see http://www.sec.gov/about/whatwedo.shtml.

[7] For an understanding of the CFTC’s responsibilities, see http://www.cftc.gov/About/MissionResponsibilities/index.htm.

[8] Edward V. Murphy et al., Cong. Research Serv., R43339, Bitcoin: Questions, Answers, and Analysis of Legal Issues (2015). (Discussing how certain perceptions and measures taken by the SEC qualify bitcoin as a currency.)

[9] See Pete Rizzo, CFTC Ruling Defines Bitcoin and Digital Currencies as Commodities, CoinDesk (Sept 17, 2015, 10:06 PM), http://www.coindesk.com/cftc-ruling-defines-bitcoin-and-digital-currencies-as-commodities/; Jared Paul Marx, Bitcoin as a Commodity; What the CFTC’s Ruling Means, CoinDesk (Sept 21, 2015, 11:50 AM), http://www.coindesk.com/bitcoin-as-a-commodity-what-the-cftcs-ruling-means/.

[10] Edward V. Murphy et al., Cong. Research Serv., R43339, Bitcoin: Questions, Answers, and Analysis of Legal Issues 1 (2015) (Analysis and discussion of regulation other states such as California and Connecticut aim to take with regards to bitcoin.).

[11] Daniel Palmer, Bill Seeking Bitcoin Ban Reaches Russian Legislature, CoinDesk (Jan 11, 2016, 10:43 AM), http://www.coindesk.com/bill-bitcoin-ban-russian-legislature/.

[12] Joon Ian Wong, UK’s Plan to Regulate Bitcoin Revealed in Treasury Report, CoinDesk (March 18, 2015, 2:02 PM), http://www.coindesk.com/breaking-uk-treasury-issues-landmark-digital-currencies-report/.

[13] Id.

Is The Martian Just The Latest Example Of A Way To Avoid Liability Copyright Infringement In International Waters?

The 2015 Golden Globe winning Best Motion Picture Musical or Comedy, The Martian,[1] is a movie about an astronaut, played by Matt Damon, who was left stranded on Mars after being presumed dead as the result of a storm.[2] He ended up surviving and was left to find a way to signal Earth that he was alive.[3] Many people may not connect this movie with copyright law, but about three-fourths of the way through the movie, Damon’s character makes the following statement: “I’ve been thinking about law on Mars. There’s an international treaty saying that no country can lay claim to anything that’s not on Earth. By another treaty, if you’re not in any country’s territory, maritime law applies. So Mars is international waters…the second I walk outside I’m in international waters. So I’m going to be taking a craft over in international waters without permission, which by definition…makes me a pirate.”[4] Although not specifically referring to copyright law, it isn’t hard to see the huge issue that this quote exemplifies: people in international waters, and other negative spaces, know that they are outside the jurisdiction of any country and can, therefore, break any laws, including copyright, that they want to without having to face consequences.

Given the evolving nature of international relations, heightened by the globalization of world economies[5] and major technological advances,[6] international law is becoming much more intertwined with domestic law. With copyright law, “as the marketplace becomes more international, the ability to exploit copyright material abroad becomes much easier.”[7] Protected works are reaching individuals throughout the world thanks to the Internet and advanced digital communications, international newspapers, multi-national corporations and global travel.[8] Consequentially, United States courts have more and more often found themselves entangled in transnational copyright disputes.[9] Copyright law, however, operates territorially, as mandated by the Berne Convention, and the U.S. Copyright Act has no extraterritorial effect.[10] Regardless, circuit courts have begun to apply domestic law to infringements that have occurred entirely abroad.[11]

However, there is an even larger problem involving copyright infringement outside of the jurisdiction of any country. The Martian is only the latest example in a trend of individuals and companies finding ways to exploit the lack of law, and therefore avoid liability, for copyright infringement in international waters. Individuals and corporations have been devising and experimenting with ways to avoid domestic copyright laws while on the high seas because international waters are one of the few areas in the world where no country can claim complete control over.[12]

In the 2009 case of Jacobs v. Carnival Corp.,[13] Carnival Cruises was held not to be liable for copyright infringement for putting on an unlicensed production of Grease because the ship was sailing outside of the U.S.’s jurisdiction (i.e. more than 12 miles out into international waters). If taking place on U.S. soil, these performances would clearly require a license.[14] However, being that this performances took place on a cruise ship sailing in international waters,[15] once the ship was outside the 12 nautical mile range of U.S. territory, the ship was in the proverbial no-man’s land,[16] and therefore U.S. copyright laws no longer applied because they have no extraterritorial effect.[17]

The other case documenting this problem involves one of the top BitTorrent websites, The Pirate Bay (TPB), which is an online index of digital content where visitors can search, download and contribute magnet links and torrent files, which facilitate peer-to-peer (“P2P”) file sharing among users of the BitTorrent protocol.[18] In 2012, TPB, on its blog page, announced a proposed plan to fly file-sharing drones in international waters to avoid copyright liability of any nation.[19] By launching their servers through GPS-controlled drones and moving them over international waters, TPB would be able to avoid criminal and civil liability for copyright infringement.[20] Just as with cruise ships publicly performing musical theater works in international waters, TPB providing copyrighted infringement in international waters would allow them to have a good argument that they are free from the laws of any jurisdiction.[21]

The nineteenth century saw a movement to institute a “universal law of copyright…[in] a single code, binding throughout the world.”[22] The Berne convention revisions in the twentieth century incrementally approached this ideal by compelling Berne countries to assure increasingly broader and stronger minimum rights.[23] Advancements in technology and media stimulated these revisions and we now live in a digitally connected world whereby individuals in one country are connected with individuals everywhere else in the world.[24] Cruise ships carry people from one state and/or country to another.[25] Geography is largely irrelevant in P2P file sharing; “[a] computer logging on in Bombay or Brussels becomes part of the same network as a computer in Pittsburgh.”[26] And, with NASA planning a mission to Mars, like in The Martian, space shuttles will be carrying people into outer space, [27] another area of international waters.

We need a broader understanding of international copyright lawmaking because right now, there is a gap in copyright protection. The currently proposed solutions, including the predicate-act doctrine, only go so far. They do not help when the infringement occurs in an area where there is no governing law. We need another solution.

 

Brittany Binderoff is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. She is Theater Chair of the Cardozo Entertainment Law Society and hopes to pursue a career in entertainment law.

LinkedIn: www.linkedin.com/in/brittanybinderoff

 

[1] Ross A. Lincoln, ‘The Martian’ Wins Golden Globe For Best Motion Picture Musical Or Comedy, Deadline (Jan. 10, 2016, 7:44pm), http://deadline.com/2016/01/the-martian-wins-golden-globe-for-best-motion-picture-musical-or-comedy-1201679827/

[2] The Martian (20th Century Fox 2015).

[3] Id.

[4] The Martian Quotes, IMDB, http://www.imdb.com/title/tt3659388/quotes?item=qt2643181.

[5] Jeff Pettit, Note, At Sea, Anything Goes? Don’t Let Your Copyright Sail Away, Sail Away, Sail Away, 93 Tex. L. Rev. 743 (2005).

[6] Gregory Swank, Comment, Extending the Copyright Act Abroad: The Need for Courts to Reevaluate the Predicate-Act Doctrine, 23 DePaul J. Art Tech. & Intell. Prop. L. 237 (2012).

[7] Swank, supra note 6 at 244.

[8] Patricia Scahill, Note, U.S. Copyright Law and Its Extraterritorial Application: Subafilms, Ltd. v. MGM-Pathe Communications, 19 Md. J. Int’l. L. 293 (1995).

[9] Graeme B. Dinwoodie, Article, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. Pa. L. Rev. 469, 529 (2000).

[10] William F. Patry, 7 Patry on Copyright § 25:86 (2015).

[11] Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 73 (2d Cir. 1988); L.A. News Serv. v. Reuters TV Int’l., 149 F.3d 987 (9th Cir. 1998); Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 306-307 (4th Cir. 2012).

[12] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, arts. 87 and 89, http://www.un.org/Depts/los/convention_agreements/texts/unclos/part7.htm.

[13] 2009 WL 856637 (S.D.N.Y. 2009).

[14] About Publishing, SESAC, http://www.sesac.com/EDU/Publishing.aspx (“The Grand Right is the right of the copyright owner to perform or license others to perform their song in a dramatic matter, which advances the plot of the production in which it is included (such as a Broadway show). This requires a license from the copyright owner separate and distinct from, what is commonly known as, the “small” performing rights…”).

[15] The United Nations Convention on the Law of the Sea (A historical perspective), Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations (2012),

http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm

[16] Id.

[17] Swank, supra note 6, at 239 (“This is because it has long been understood that copyright laws operate territorially.”).

[18] Matt Peckman, How The Pirate Bay’s Anti-Censorship ‘PirateBrowser’ Works, Time (Aug. 12, 2013), http://techland.time.com/2013/08/12/how-the-pirate-bays-anti-censorship-piratebrowser-works/.

[19] Mr. Spock, TPB Loss, The Pirate Bay Blog (March 18, 2012), https://thepiratebay.vg/blog/210.

[20] Eriq Gardner, How Hollywood Could Stop Pirate Bay’s Plan to Launch Servers into the Sky, The Hollywood Report (March 22, 2012: 4:19pm PT), http://www.hollywoodreporter.com/thr-esq/pirate-bay-mpaa-hollywood-servers-303369.

[21] Id; see also Jason Koebler, The Pirate Bay to Fly ‘Server Drones’ to Avoid Law Enforcement, U.S. News (March 19, 2012: 12:15pm EDT), http://www.usnews.com/news/articles/2012/03/19/the-pirate-bay-to-fly-server-drones-to-avoid-law-enforcement.

[22] William Briggs, The Law of International Copyright 162 (1906).

[23] Berne Convention for The Protection of Literary and Artistic Works, arts. 2(1) and 5(1), July 24, 1971, 1971 U.S.T. 263, 1161 U.N.T.S. 35.

[24] Paul Edward Geller, The Universal Electronic Archive: Issues in International Copyright, 25 INT’L REV. OF INDUS. PROP. & COPR. L. [I.I.C.] 54 (1994).

[25] Pettit, supra note 5, at 743-744.

[26] M. Eric Johnson, Dan McGuire, Nicholas D. Willey, The Evolution of the Peer-to-Peer File Sharing Industry and the Security Risks for Users, Hawaii International Conference on System Sciences, Proceedings of the 41st Annual (2008), http://digitalstrategies.tuck.dartmouth.edu/cds-uploads/publications/pdf/30750383_1.pdf.

[27] NASA’s Journey to Mars, NASA (Dec. 1, 2014), https://www.nasa.gov/content/nasas-journey-to-mars.

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