How Brazilian Jiu Jitsu Can Make You a Better Lawyer!

Ryan-DanzFor those of you who know me (or have read my bio), you know my obsession with the fine art of Brazilian Jiu Jitsu. And what do you know, I got an email from the American Bar Association today promoting a new book published by fellow attorney Ryan Danz entitled “How Brazilian Jiu Jitsu Can Make You a Better Lawyer.”

According to the press release:

Notable attorney, entrepreneur, and world-wide celebrity Ryan Danz discusses the martial art of Brazilian Jiu Jitsu and demonstrates how one of the most complete-yet still relatively unknown-martial arts disciplines in the world can make you a better lawyer! You’ll discover how to:

  • Transition from the “Lawyer’s Mind” to the “Jiu Jitsu Mind”

  • Become a better, more focused, less ego-driven professional

  • Grow into a more self-esteemed lawyer, professional, and person overall

Honestly, I have no idea if the book is any good but would certainly recommend that my colleagues grab a copy anyway and find out. BJJ really does seem to bring out the above three bullet points in all of the people I know who practice it. In any case, I’ll pick up a copy if only because (i) Mr. Danz preempted my idea, and (ii) it’s very cool to see the sport catch on in our professional circles.

P.S., the book cover image is too small to say for sure, but is that a bit of cauliflower I see on Mr. Danz? If so… bad-ass!

Google Books Decision Bursts Open Commercial Fair Use

internet lawyerThis week the Southern District of New York has widened the door for “for-profit” tech companies to stretch the boundaries of copyright protection by ruling in Google’s favor on summary judgment in the Author’s Guild v. Google class action. While the decision proceeds through a straight-forward fair use analysis, it joins a very small set of cases that hold that certain types of copyright infringement, even where the copying is motivated by for-profit interests, can constitute a fair use. The Author’s Guild v. Google Inc., 05-cv-8136 (DC) (S.D.N.Y., November 14, 2013).

Background.

The Author’s Guild sued Google back in 2005 for copying several million copyrighted works as part of its Google Books scan and search project. After several years of back and forth on procedural issues (there was a settlement that the Court tanked, then there was a class action certification the the 2nd Circuit sent back), Google moved for summary judgment on the basis of the fair use doctrine. Under fair use, certain unauthorized copying of works is not an infringement if done to fulfill the purposes of “criticism, comment, news reporting, teaching… scholarship, or research.” 17 USC 107.

In this case, Google argued that the scanning and digitizing of books where internet users could search and view limited snippets of text for research purposes, and where the donating libraries received full digital copies of the books, was a fair use fulfilling scholarship and research purposes.

The Analysis.

On the issue of fair use, the court considers four factors with respect to the unauthorized copying to see whether they, overall, favor fair use: (i) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount or portion of the work copied; and (iv) the effect of the use on the potential market.

I will not go into the details of the very thorough and straight-forward analysis made by the court (hit the link above for the full decision), but here’s the significance of this case: Fair use was found in Google’s favor despite the fact that Google Books is predominantly a for-profit commercial enterprise.

In 99% of fair use cases, the first factor (the purpose and character of the use) tends to prove dispositive against for-profit defendants. In this case the court went the other way due to what it saw as the overwhelming scholarly benefit that Google Books provided as well as the various security measures Google took to prevent general users from downloading full books by combining various snippets.

The Court noted:

[C]opying the entirety of a work may still be fair use. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); Bill Graham Archives, 448 F.3d at 613 (“copying the entirety of a work is sometimes necessary to make a fair use of the image”).

Thus Google now stands among a minority of fair use decisions where the defendant made a commercial use and won.

Hulu Users Try to Maintain Class Action Despite Supposed Lack of Injury

Internet LawBack in October Hulu attempted to dismiss the class action brought against it by users whose information was allegedly shared with third-party advertisers by arguing that the Video Privacy Protection Act (VPPA) does not apply to plaintiffs who do not (or cannot) allege exact monetary damages. Now the users have responded by pointing out that Hulu’s reading of the VPPA makes no sense.

Brief Background (from MediaPost).

Hulu previously acknowledged in court papers that it discloses data to third parties, but says that it never linked users’ names to their movie-watching history. Instead, it assigns users a seven-digit User ID, and then transmits data about that User ID.

The consumers alleged in their lawsuit that third parties could figure out people’s identities from their User IDs, given that Hulu included the User ID in the Web page addresses of users’ profile pages. Hulu, which stopped transmitting User IDs two years ago, countered that there’s no proof that any third parties were able to figure out users’ identities.

Current Argument.

Hulu seeks to dismiss the VPPA-based class action with two arguments:

  1. The language of the VPPA only provides a right of action to those who are “aggrieved” — which Hulu argues should mean proof of actual pecuniary loss; and
  2. The language of the VPPA does not otherwise provide a right of action to those who cannot prove actual pecuniary loss (sort of the converse of the above).

With regard to #1, the users point out that Hulu’s definition of “aggrieved” is quite obviously self-serving and, relating this to #2, the VPPA in fact provides minimum liquidated damages of $2500 per violation which implies that actual pecuniary loss need not be shown to bring a VPPA lawsuit.

In other words, where liquidated damages are, historically, a means to redress harms that are difficult to calculate, Congress would not have included liquidated damages in the VPPA if it did not intend the law to be used by plaintiffs who would have a hard time calculating their actual financial losses from the violation.

I think the users’ argument makes sense. I cannot really see any situation where someone could easily attach an exact financial figure to having his video history shared with third-parties. Maybe someone’s boss finds out that they are into some sort of questionable video content and that person gets fired… but this is a stretch, and one that would not justify an entire Act to be passed by Congress.

Moreover, at the end of the day I am not so sure that actual damages in this case couldn’t be calculated: How much money did Hulu earn for selling users’ information?

This is not a good case for Hulu, and it highlights a positive trend in internet law: If you want to monetize on user info, get consent.

Questions of Inducement on Latest Viacom v. YouTube Appeal

youtube_logoAs promised, Viacom again appealed its loss against YouTube back in April 2013, this time arguing that the lower court should have done more than analyze whether YouTube had sufficient evidence of users’ infringing use of its website. This time, Viacom argues that the court should have analyzed whether the evidence would support a theory that YouTube induced its users to infringe.

Short Refresher.

Recall that in April 2012, the Second Circuit “sort of” ruled in Viacom’s favor by sending the case back to the Southern District of New York to decide whether Viacom had raised sufficient evidence of “red flag” activity. Such evidence would potentially show that YouTube was or should have been “aware of the facts and circumstances from which infringing activity is apparent,” which would kill YouTube’s DMCA immunity defense.

Under DMCA 512(c), service providers like YouTube are immune to claims of copyright infringement arising out of the infringing actions of their users so long as the service provider was not an active participant (or in this case willfully blind) in the infringing activity.

YouTube Keeps Winning, Viacom Keeps Appealing.

So then in April of this year Viacom lost again, with the SDNY finding no evidence of “red flag” activity.

Now Viacom has appealed again, arguing that evidence of inducement is sufficient evidence of “red flag” activity. Recall my colleague Eric Goldman’s note that the Circuit rulings are making the 512 safe harbors increasingly messy to invoke by tacking on more and more factors that the courts must analyze (guess he was right).

EFF Articulates the Best Standard for Inducement.

In my opinion, the latest amicus brief filed by the Electronic Frontiers Foundation (EFF), supporting YouTube, makes the best law and policy-based argument for why Viacom’s inducement theory is a no-go:

Simply put, the inducement liability threshold is stricter for products and services that have substantial non-infringing uses versus ones that don’t. Liability in such cases is strictly limited to circumstances of “acute fault” from the service provider. Grokster, 545 U.S. at 932-33.

Only “one who distributes a device with the object of promiting its use to infrigne copyright, as shown by a clear expression or other affirmative steps taken to foster infringement” can be found liable for inducement. Id. at 936-37.

IP Rights v. Innovation.

At the end of the day, this is an IP rights v. innovation lawsuit. The EFF correctly points out that the legislative purpose behind the DMCA was to legislate the Grokster-based policy of balancing between protecting IP rights owners while giving innovators sufficient leeway to design new products and services without the threat of getting sued for every little thing.

As the EFF noted, inducement is not meant to be a “thought-tort” and should be carefully applied when it comes to products and services that have significant non-infringing potential (like YouTube).

Update on Aereo and Filmon X: Ruling differ by District

intellectual property attorneyA brief update on my coverage of the Aereo streaming service copyright litigation by District:

  • Boston (1st Circuit): No preliminary injunction against Aereo, plaintiff’s request to expedite appeal denied this week
  • New York (2nd Circuit): No preliminary injunction against Aereo
  • Utah (10th Circuit): Lawsuit filed against Aereo this week
  • Los Angeles (9th Circuit): Injunction granted against Aereo-like service Filmon X
  • Washington D.C. (Federal Circuit): Injunction granted against Aereo-like service Filmon X

What Aereo’s lawyers seem to be doing right (versus what Filmon seems to be doing wrong) will be analyzed as part of a subsequent post as I gather data on their respective filings. It is fairly clear that the two services are virtually identical, so if it looks like the 9th Circuit is geared to place itself at odds with the 1st and 2nd Circuits (no guarantees of this since the various appeals have not been ruled on yet), then we are likely to see some Supreme Court action in 2014-2015.