Cyberlaw Cases

In today’s New York Times, there is an excellent article on the ongoing battle between companies and consumers over online criticism. In addition to discussing the various lawsuits that have been brought, the article also noted the following:

Recognizing that lawsuits can bring more unwanted attention, one organization has taken a different tack. The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.

Dr. Jeffrey Segal, chief executive of Medical Justice, said about half of the group’s 2,500 members use the agreement.

“I, like everyone else, like to hear two sides of the story,” he said. “The problem is that physicians are foreclosed from ever responding because of state and federal privacy laws. In the rare circumstance that a posting is false, fictional or fraudulent, the doctor now has the tool to get that post taken down.”

This so-called “agreement” strikes me as both legally and ethically suspect. Not only does copyright law generally require written assignments of copyright to be for some kind of payment (what is the payment here? The medical treatment? I thought that was what health insurance and co-pays were for?) but unless it is a work-for hire or some other kind of ongoing employment relationship, you generally can’t force people to assign their copyright in a web posting before it is written.

Moreover, such an agreement seems unethical under the American Medical Association Ethics Code. AMA Ethics Opinion 8.03 states:

Under no circumstances may physicians place their own financial interests above the welfare of their patients. The primary objective of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. For a physician to unnecessarily hospitalize a patient, prescribe a drug, or conduct diagnostic tests for the physician’s financial benefit is unethical. If a conflict develops between the physician’s financial interest and the physician’s responsibilities to the patient, the conflict must be resolved to the patient’s benefit.

Since the main concern of Medical Justice appears to be preventing harm to the physician’s reputation (and thus financial interest), forcing patients to assign away their copyrights in exchange for medical care strikes me as close if not over this line. It certainly is not putting patients first. When a patient goes to see a doctor, they are often anxious, in pain, or worried and thus in a very psychologically vulnerable position, or what the law often calls a position of “duress” where they will often sign documents without giving them proper consideration. This hardly seems to me to be a fair time to demand they assign some unknown number of future copyrights to their doctor; instead it feels like a huge power grab by the physician.

Moreover, as Dr. Segal states in the article, these so-called “assignments” of copyright become a “tool” to take posts down from the Web. One can surmise that he intends for these doctors to invoke the notice-and-takedown provisions of Section 512 of the DMCA as a convenient way to censor criticism and cajole websites like Yelp! to remove the postings. However, this too strikes me as unethical and a potential abuse of the DMCA system. The DMCA takedown system was meant to allow copyright owners whose works were being posted online by others and costing them sales of copyrighted goods (e.g. movies and music) to enjoy an expedited process for stopping infringement and limiting economic harm to their content.

Here, it is clear that these web postings have no economic value as content to the physicians — rather they are, at best, potentially harmful to their reputations (note again, though, that this would likely be a violation of their ethical duty either way).

I should note that much of this is speculation on my part. I have not seen this so-called agreement and have not heard of any doctor taking things off the web based on it; but it does strike me as ironic that a group like Medical Justice, which proclaims its mission as “relentlessly protecting physicians from frivolous lawsuits” would embrace and endorse potentially frivolous, unethical, and abusive legal documents and actions to further its goals.

The Library Alliance has posted an infographic trying to explain all the possible outcomes of the GBS lawsuit. I’m not sure they’ve got them all down correctly, but it’s an interesting way to represent the situation. At the very least, it shows that the battle over the Settlement is far from over.

Judge Chin has released an order for the list of speakers at the Google Book Search settlement fairness hearing, scheduled for Feb. 18.

Speaking in Opposition:

1. Sarah Canzoneri, a member of the Children’s Book Guild
2. Scott E. Gant (author and class action specialist)
3. Microsoft
   
4. Amazon.com
5. Science Fiction & Fantasy Writers of America and the American Society of Journalists and Authors
6. Professor Pamela Samuelson, UC Berkeley
7. Cindy Cohn (EFF), on behalf of the Privacy Authors and Publishers
8. Yasuhiro Saito, on behalf of the Japanese P.E.N. Club et al.
9. The French Republic
10. The Federal Republic of Germany
11. The State of Connecticut
12. Questia Media
13. AT&T
14. Cynthia Arato, on behalf of the New Zealand Society of Authors
15. Consumer Watchdog
16. EPIC
17. Open Book Alliance
18. Andrew Devore, on behalf of Arlo Guthrie, Julia Wright, Catherine Ryan Hide, and Eugene Linden
19. Matthew Weiss, on behalf of Darlene Marshall
20. VG WORT

Speaking in Favor:

1. The Institute of Intellectual Property & Social Justice, Howard University School of Law
2. Sony Electronics
3. National Federation of the Blind
4. Paul N. Courant, University of Michigan Library
5. Center for Democracy & Technology

Each of the above parties will have only five minutes to make its case. After that, the DOJ speaks, then the parties. Should be quite a hearing!

Case and Court:

Jacobsen v. Katzer, (N.D. Cal.)

We recently covered the summary judgment arguments in the model railroad free software case. Just days later a decision from the court granted Jacobsen victories on virtually every issue suitable for resolution on summary judgment.

Summary judgment was granted in favor of Jacobsen on the Anticybersquatting Consumer Protection Act (ACPA) claim, on his copyright infringement claim, on Defendant’s counterclaim for copyright infringement, and partial summary judgment on the DMCA Copyright management information claim (on everything but the knowledge and intent elements).

We had previously highlighted the actual damages issue as particularly noteworthy, and while the court does not reach an award of damages in this ruling, the court wrote,

“[T]he Court may assume at this procedural stage that there is some value for the expenditure of time invested in the JMRI Project and that it therefore has some monetary value.”

and

“[T]he Court is unpersuaded that Plaintiff cannot prove damages.”

The parties are supposed to attend another settlement conference shortly and the writing is on the wall on this one, so if both parties adopt reasonable positions going in to that conference, they should come out with a resolution. Timing will be interesting, however, as the Federal Circuit appeal on irreparable harm is slated for oral argument on Jan. 4, 2010, and that appeal might not go forward if a settlement is finalized beforehand.

Earlier this week, Judge Gertner entered judgment to the tune of $675,000 in Sony BMG v. Tenenbaum. Nothing particularly surprising there. This was the number arrived at by the jury, based on a statutory damages calculation of $22,500 per infringed work.

The court also issued an injunction barring Joel Tenenbaum from infringing plaintiffs’ work in the future, and requiring him to destroy all infringing copies of plaintiffs’ works. Again, all pretty standard fare.  But a couple issues of note crop up in the court’s memorandum on the issue of injunctive relief. First, the court rightly refused the record labels’ effort to enjoin Tenenbaum from “promot[ing] … using the Internet or any online media distribution system to infringe copyrights,” recognizing the First Amendment implications of such an ambiguous prior restraint.

More troubling is the court’s treatment of the standard for injunctive relief. A permanent injunction requires a showing that the harm at issue is irreparable and that monetary damages are inadequate. If you are not a copyright litigator, you might wonder how plaintiffs who are to receive $675,000 in damages for sharing 30 songs could argue with a straight face that they have suffered irreparable harm for which money alone cannot possibly compensate.
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Case and Court:

Jacobsen v. Katzer, (N.D. Cal.)

Occasionally we will blog about “Other cases to watch” that are not on our Top 10 list.

On Friday, Dec. 4, 2009, I attended the oral argument in Jacobsen v. Katzer on the parties’ cross-motions for summary judgment. This case has made one trip to the Federal Circuit already and has oral argument in another appeal scheduled for Jan. 4, 2010. It seems to be less recognized that at least two interesting issues remain in the case at the district court level: 1) the alleged infringement of the selection and arrangement of certain data, and 2) the appropriate method of calculating actual damages to a free software project that, through failure to timely register its copyrights, is not eligible for statutory damages.

Background

In Jacobsen’s first appeal, the Federal Circuit vacated and remanded the denial of Jacobsen’s motion for a preliminary injunction premised on an allegation of copyright infringement. Jacobsen, a UC Berkeley physics professor, leads the Java Model Railroad Interface (JMRI) free software project which, at the time of this dispute, was provided under the Artistic license. The key issue on the first appeal was whether the alleged breach of a free software license, such as the Artistic License, provided JMRI with a cause of action for copyright infringement or merely for breach of contract.
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As reported on Google’s Public Policy Blog and in the New York Times, the Authors Guild, the AAP members, and Google have announced their amended settlement in the Book Search case.

The amended settlement attempts to address a number of the objections raised regarding antitrust issues, international copyright ownership, pricing, and access to out-of-print and/or orphaned works. It also has provisions for Open Access options for rightsholders, such as the option to put a Creative Commons license on your work. There do not seem to be any amendments to address reader privacy concerns, at least not directly.

No dates for filing objections or a fairness hearing have been set, but the parties have requested the following:

• December 14 – Supplemental Notice commences.
• January 28 – Class member Opt outs are due.
• February 4 – DOJ comment on settlement is due.
• February 11 – Plaintiffs’ motion for final settlement approval is due.
• February 18 – Final fairness hearing occurs.

Update: Judge Chin has granted preliminary approval to the amended settlement and agreed to hold the fairness hearing on February 18, 2010.

As has been reported in the press, Judge Chin held a short hearing today on the GBS Settlement and gave the parties until November 9, 2009 to submit an amended settlement agreement to address the concerns raised. There are no official dates for responses to be filed, but there was some indication that the Court would hold a new fairness hearing in December or early January 2010.

This just in: The GBS plaintiffs have filed a motion to adjourn the fairness hearing so they can negotiate with Google and the DOJ (and perhaps others as well) in light of the concerns expressed in the filings so far. They have asked for a status conference with the judge on November 6, 2009 to provide an update at that time. Google has not opposed the motion.

Update: The motion has been granted.

The U.S. Department of Justice has filed a statement of interest in the Google Book Settlement case. As James Grimmelmann notes, it addresses mainly two issues: (1) competition and (2) the adequacy of the class representatives.

It is worth noting that the DOJ brief clearly recognizes the difficulty that the orphan works problem presents to both sides of the equation. On the one hand, the Settlement provides access to many out-of-print works that may, in fact, be orphaned and thus essentially impossible to license without some kind of massive settlement or legislative efforts. This weighs heavily in favor of approval and the pro-access benefits that would flow from it. On the other hand, it is exactly this inaccessibility that raises the class representative concern. How can a group of plaintiffs and their lawyers represent people who are impossible to find? This raises notice concerns and potential objections to approval.

In light of this and other concerns, the DOJ proposes something of a wait-and-see approach to the Settlement. Wait and see what the parties say in response to these concerns and then if they do not go far enough, reject the Settlement and force them to modify it.

For those of you following the Google Book Search Settlement case (currently #1 on our list), September 8 was the deadline for filing objections and amici. (The original date was Sept. 4 but due to maintenance on the Court’s Electronic Filing System, it was extended to Tuesday morning). The “fairness” hearing where Judge Chin will consider the fairness, adequacy, and reasonableness of the settlement is still scheduled for October 7, 2009.

There were many filings, most of them well-chronicled here and  here on Prof. James Grimmelmann’s blog. Of particular note for their entry into the debate are:

1) Several groups of European publishers who have now explicitly raised concerns about the impact of the Settlement on the Berne Convention and other international treaty obligations; and

2) Several state Attorneys General who are concerned about the legality of the Book Rights Registry administering any unclaimed funds under the states’ non-profit and charity laws.

It is also worth noting that there have been numerous amici filings in support of the Settlement, most emphasizing the profound benefits it offers in terms of increased access to information and knowledge, especially for historically disadvantaged groups and those with disabilities.

Finally, I should note that I am counsel on the brief for the Privacy Authors and Publishers (including EFF and the ACLU) and thus, this blog post (and the original in the top 10 list) are my own opinions and should not be construed as those of any of my clients in this matter.