A few days ago, I attended oral arguments before the First Circuit Court of Appeals in the case of Joel Tenenbaum, a graduate student being sued by various record labels for sharing music files via a peer-to-peer service over the Internet (Sony v. Tenenbaum, docket available here). I’ve already written up some of my thoughts about the possible outcome of Joel’s lawsuit over at my regular blog, Legally Sociable.
Here, I’d like to expand my analysis somewhat to cover Tenenbaum’s broader implications. Many CMLP blog readers may be asking themselves, “So what? What could swapping MP3’s on the Internet possibly have to do with the activities of citizen journalists?”
Under an ideal intellectual property regime, the answer would doubtless be “very little.” Non-commercial use of music for personal entertainment bears little logical resemblance to news reporting, analysis, and advocacy. One might reasonably imagine that IP law treats P2P music downloading differently from blogging about the news.
Unfortunately, in the real world, the law ends up treating blogging almost exactly like file sharing because both activities primarily fall within the purview of copyright law. Moreover, 17 U.S.C. § 504(c) provides extremely flexible statutory penalties “as the court considers just.”
Description:
Righthaven LLC, a Las Vegas company, filed a copyright infringement lawsuit in the U.S. District Court for the District of Colorado against BuzzFeed, Inc. (the operator of an internet news website), Jonah Peretti (the founder and CEO of BuzzFeed and the registrant of the domain name buzzfeed.com), and Gavin Laessig (an employee of BuzzFeed). Righthaven alleges that the defendants reposted on the BuzzFeed website, without permission, a photograph of a TSA agent performing an enhanced pat-down check that was originally published in The Denver Post. In addition to seeking monetary damages, Righthaven has demanded that the court compel BuzzFeed’s domain name registrar to transfer control of the buzzfeed.com domain to Righthaven.
Defendants BuzzFeed and Peretti answered the complaint, denying Righthaven’s claims of copyright infringement and asserting numerous affirmative defenses to the complaint (including challenging Righthaven’s ownership of the copyright in the photo, claiming copyright abuse, asserting a lack of personal jurisdiction over the defendants and a lack of proper venue in Colorado, and objecting to transfer of the buzzfeed.com domain name as a remedy beyond the scope of the Copyright Act). BuzzFeed and Mr. Peretti further asserted that valid service had not been made on the third defendant, Mr. Laessig.
Defendants BuzzFeed and Peretti also filed a class action counterclaim against Righthaven based upon its filing suit for copyright infringement in at least 275 cases, primarily in Nevada and Colorado. The counterclaim seeks a declaratory judgment that the class/counterclaim plaintiffs’ use of the alleged copyrighted works was fair use and an injunction against Righthaven filing additional copyright lawsuits. The counterclaim also includes claims for abuse of process and violation of Colorado’s unfair and deceptive trade practices statute, C.R.S. § 6-1-105, based upon Righthaven’s litigation history. Specifically, the counterclaim alleges that Righthaven (1) failed to send the class/counterclaim plaintiffs any notice and takedown communication prior to filing suit, (2) sought relief to which it knew it was not entitled by seeking locking and transfer of domain names, (3) asserted ownership of copyrights that it did not own, (4) failed to investigate or adequately allege personal jurisdiction over the class plaintiffs, (5) failed to investigate whether the challenged uses of the copyrights were fair use, and (6) abused the legal system by using the threat of statutory damages and injunctive relief to extract monetary settlements.
Update:5/19/2011: After the filing of BuzzFeed’s answer and counterclaim, the court stayed the action (as well as all other Righthaven litigation in the District of Colorado) in response to a motion to dismiss in another Righthaven case in the district (Righthaven LLC v. Wolf et al., No. 1:2011-cv-00830) raising questions of subject matter jurisdiction.