Wednesday, May 21, 2014

Opening Pandora's Box: Supreme Court Allows Archaic Copyright Infringement Cases to Proceed

This week, the U.S. Supreme Court opened Pandora's Box.

The decision that the Supreme Court may come to regret involved a copyright infringement lawsuit surrounding the script to the movie Raging Bull, which was released in 1980.  In the film, Oscar-award winning actor Robert DeNiro played boxer Jake LaMotta.  

An heir to the co-author of a 1963 screenplay about the life of the boxer apparently waited until 2009 to file a copyright lawsuit, claiming that the 1980 movie had copied portions of her father's screenplay without authorization.

The District Court in Los Angeles and the Ninth Circuit Court of Appeals applied the equitable doctrine of "estoppel by laches," borrowing the 3-year statute of limitations in the U.S. Copyright Act.  Those Courts both found that the writer's heir had deliberately waited to file suit, prejudicing MGM which had released the film thirty-four years ago.

However, on Monday, in an unusual 6-3 split not along ideological lines, Judge Ruth Bader Ginsburg wrote for the majority, finding that the significant delay will not bar the heir from seeking damages or an injunction on a rolling basis, going forward.

The majority reasoned that each time a new Raging Bull DVD is printed and sold, there is a new independent act of copyright infringement potentially violating the heir's copyrights. Every new DVD that is printed, every time the film is broadcast on television or the film is re-mastered or re-released, is effectively a new act of infringement subject to the 3-year window going forward, not backward.

The end result is that copyright disputes that originated thirty or forty years ago -- or even in the more distant past -- can be resurrected and instituted now.

Justices Stephen Breyer, Anthony Kennedy and Chief Justice Roberts dissented, holding that the precedent would upset settled doctrine, and open up years of litigation over old wounds.

70-year old Jimmy Page, Robert Plant and others in Led Zeppelin presumably agree with the dissent's point of view.

In 1971, Zeppelin released the now iconic "Stairway to Heaven."  According to some estimates, the song has earned at least $562 million since its release, a number poised to rise higher since Zeppelin is set to release new versions of its albums this summer.

Relying on Monday's Raging Bull decision from the U.S. Supreme Court, Time magazine reports that a new copyright infringement lawsuit has now been filed by representatives of the band Spirit, which released an instrumental song "Taurus" in 1968.  According to the newly-filed lawsuit, Zeppelin opened for Spirit in the late 1960's, and was inspired to write the now famous guitar introduction to Stairway.

Direct evidence of copying may nonetheless be difficult to gather.  Spirit's lead guitarist Randy California died in 1997 and documents showing copying, if any, were presumably lost to the mists of time.

Tuesday, May 20, 2014

FCC Chairman Wheeler: A “Conservative” Approach in Washington Today?

Recently, the Chairman of the Federal Communications Commission (FCC) Tom Wheeler opened up to public comment the agency’s decision whether to permit the use of cell phones on airline flights.  

This decision follows the Federal Aviation Administration’s (FAA’s) decision to allow airlines to safely expand passenger use of consumer electronics during all phases of flight.

Chairman Wheeler recently announced his own views:  “The job of the FCC with respect to this issue is limited to issues related to communications technology.  Technology is available and being deployed today on flights outside the United States that permits use of mobile devices on planes without causing interference to cell phone networks on the ground.  These advances in technology likely no longer warrant – on a technological basis – the prohibition of in-flight phone use with the appropriate on-board equipment.

He went on to further note that “[w]e understand that many passengers would prefer that voice calls not be made on airplanes.  I feel that way myself.  Ultimately, if the FCC adopts the proposal in the coming months, it will be airlines’ decisions, in consultation with their customers, as to whether to permit voice calls while airborne.”

Therefore, Chairman Wheeler’s decision to open the controversial issue up to public commentary took an act of political courage.  The FCC recognizes that its charge is limited to technological issues, and such restraint should permit free market forces to work to set the correct level of regulation.

Further, Chairman Wheeler is also advancing the position that rewriting “net neutrality” rules to require a flat playing field for all Internet providers may be a form of potentially unwarranted interference with the free market’s desire to offer faster Internet connections to those who want to pay for them. 

Many commentators agree, and argue effectively that Internet access is no different than any other commodity subject to market forces:  “Wouldn’t it be great if a two bedroom, 2,000 square foot apartment on Park Avenue cost the same as one in Queens?  Or if a front row ticket to a Broadway show cost the same as one in the mezzanine?  Wouldn’t it be great if you could buy a new BMW for the same amount as a new Hyundai?  Or if the price of a Harvard education were equal to one from your local community college?  These things are priced differently.  They are not neutral.  Nothing is neutral in a free market economy."

Chairman Wheeler’s willingness to discuss the proper level of governmental regulation of the free market in the mobile telephone and Internet access situations is a breath of fresh air in a political environment too often filled with federal agencies seeking to perennially expand their regulatory power and exert leverage over the free market, regardless of consequence.

The Chairman should be applauded for his courage in entertaining these important discussions in such a toxic political environment.