Tiffany v. eBay: Post-trial briefs filed

As we discussed in class, the combatants in the Tiffany v. eBay case, which may set an important precedent on the question of secondary trademark liability for Internet intermediaries, were set to file their post-trial briefs on December 7. They've now done so.

Here is Tiffany's brief, in which it characterizes eBay as a "rat's nest" of counterfeiters.

Here is eBay's brief, in which Tiffany is characterized as a lazy trademark owner trying to shift the entire burden of policing to eBay.

A ruling could come any time, and I'd predict sometime before the law clerks leave next summer.

UPDATE: Prof. Eric Goldman has a nice summary of some of the interesting facts from the briefs.

Tiffany v. eBay in the Times

Just in time for our class on the subject this week, the New York Times has a story today about the Tiffany v. eBay trial that concluded last week. Unfortunately, closing briefs from both sides aren't due until December 7 -- I imagine those will lay out all the arguments in detail. But since it was a bench trial, and since both sides appear to want a ruling on the law, I think we'll get a published precedent out of this that will have an important impact on the law of contributory trademark infringement online (unlike a jury trial, which generates no written ruling).

Veoh v. UMG Suit Dismissed

Veoh is a video hosting service (like YouTube). After being threatened by Universal Music Group (UMG), Veoh filed a preemptive declaratory judgment suit in San Diego seeking to clarify its qualification for the DMCA safe harbors.

On Nov. 15, the district court dismissed Veoh's lawsuit. Here's the heart of the court's reasoning:

Although Plaintiff's Complaint suggests disagreement between the parties, the nature and extent of the controversy has not been adequately defined to support federal jurisdiction. Plaintiff's Complaint generally discusses their video hosting operation, that Defendant owns unspecified copyrights, and that Defendant has made unspecified threats of copyright infringement litigation. From these general allegations, Plaintiff seeks a far-reaching declaratory judgment that it is not liable for infringing any of Defendant's rights and is entitled to the Section 512(c) safe harbor.

However, because Plaintiff does not reference any specific copyright, even by way of example, the relief requested would necessarily take the form of an advisory opinion. Succinctly, the Court cannot determine whether a safe harbor for copyright infringement exists without knowing which rights are at stake.

So it seems that copyright owners can hang the threat of litigation over the head of a start-up (which will likely interfere with its fund-raising efforts), but the start-up can't get a court to decide whether its business qualifies for the DMCA safe harbors. Tough spot.

The good (?) news for Veoh is that UMG ultimately filed its own suit a few weeks after Veoh filed, so we'll find out one way or another. But UMG got to pick the forum (Los Angeles, rather than San Diego).

The BoomShuffle Way

BoomShuffle: Noninteractive Webcast? Something Else?

OK, could someone please tell me how this is properly licensed?

BoomShuffle enables users to create 15-song "mixes" that can be embedded as a widget on any webpage (target: Facebook, bloggers, etc). There are restrictions that require that the songs "shuffle", that the listener cannot choose a particular track, and cannot skip more than a few tracks, and that they cannot have more than one artist represented. Does this qualify under the 114 statutory license, or does it require voluntary licenses from all the relevant rightsholders? It makes me dizzy to think about it.

This is a product of Snocap, founded by Shawn Fanning (who was the founder of the original Napster), and a company that has reinvented itself several times. For a while, they were going to be the "filtering+rights repository" for legit P2P services. Then they became the online store for myspace artists. Now this.

Read this article for a quick overview of how this works (the site doesn't make all this clear immediately).

I'm constantly amazed at the creativity of engineers and lawyers working in concert.

UPDATE: Apparently BoomShuffle isn't the only one trying this approach -- FineTune got there first. Their FAQ strongly suggests that they are relying on the 112/114 statutory licenses. I think I'll start class tomorrow by asking you all whether that's going to fly in court or not.

Royalties Set for Satellite Radio + TV Bundles

As we discussed last week, the satellite radio services are covered by the 114 statutory license for sound recordings (because they are making digital transmissions), but abide by a lesser set of restrictions and are subject to a different statutory rate (because they can't count individual recipients, since they just have a one-way broadcast technology).

In 2005, XM Radio asked the CRB to set a new rate for a new service -- satellite radio bundled with satellite TV channels. As reported by the Broadcast Law Blog, the CRB just announced that the main parties (XM, SoundExchange, Sirius, MTV) reached a settlement and decided on 15% of revenues. This appears to be exactly twice what "existing services" (i.e., digital music services already being broadcast by cable companies, like MusicChoice) are required to pay. Why the difference? Perhaps because the satellite radio companies were afraid what the "willing buyer, willing seller" standard might have yielded if the CRB was forced to decide the issue? I don't know.

MP3Tunes Gets Sued by EMI

Looks like the "music locker wars" have now officially begun. EMI has sued Michael Robertson, the founder of MP3Tunes.com. MP3Tunes.com offers both LockerSync and Sideload, which are both different takes on "music lockering." If it doesn't settle, it would be another test of the outer bounds of 512.

Note that Michael Robertson is one tough customer, having been sued by the major labels (for MP3.com) and Microsoft (for Lindows, now Linspire). He's got good lawyers, and knows how to run a company in a "minimize discovery costs" manner.