Category: Law & Policy

Mraz Sues Coors – Instructive to Copyright Small-Claim Alternative

When it comes to copyright infringement, the internet—namely social media platforms—has taught even very large commercial entities some very bad habits.  When I read yesterday morning that singer/songwriter Jason Mraz filed suit yesterday against MillerCoors LLC for making infringing use of his mega-hit “I’m Yours” on Instagram, my first thought was “Of course they did,” when it really should have been “What the hell were they thinking?”  

One barely needs to read the complaint to interpolate the facts from this summary sentence on Bloomberg Law:  “The allegedly infringing advertisement, posted [to Instagram] in May, reportedly shows about 13 seconds of Mraz’s performance of ‘I’m Yours’ at the BeachLife Festival in Redondo Beach that same month.”  Then, Bloomberg quotes the complaint stating, “Superimposed over portions of the Infringing Advertisement is a logo for Coors Light stating ‘Presented by Coors Light.’” Holy dope-slaps, Batman, how does a multi-national corporation do something this dumb?  

According to TMZ, a spokesperson for MillerCoors stated, “MillerCoors contracted the rights to the BeachLife Festival and video assets through the event’s promoter, so if they truly feel there has been a violation here, we are not the party they should be suing.”  Without knowing any of the details about that contract, I’m going to guess that somebody didn’t do his homework.  Because ain’t no way Mraz and the roughly forty other artists who played the festival agreed to third parties turning their appearances and music into individual advertisements.  

Even if Mraz separately had grounds for a complaint against the promoter, that would not shield MillerCoors from liability for its own conduct, which the complaint alleges amounts to copyright infringement, trademark infringement, infringement of Mraz’s right of publicity, California’s civil code protecting the right of publicity, and California’s code proscribing deceptive business practices.  I doubt this case will last very long.  This is just sloppy work by someone at the agency or within MillerCoors, and it will be interesting to see if the beermaker even bothers to file a response before settling.  

The CASE Act is a Useful Alternative for Everyone

Because this commercial use involved concert footage—the kind of clip fans upload to social media all the time now—and it was placed on Instagram, the misstep of this multi-national corporation is indicative of just how common these bad habits are among smaller entities and rightsholders.  Imagine the singer/songwriter in this case is not a big star but a professional working artist just becoming popular enough to attract an infringing use of her work, and she finds a similar video of her performance used to promote some start-up business.

Both the artist and the business owner in this example can be counted on to be fairly clueless about intellectual property, which is nothing new; but thanks largely to “internet culture,” the very idea that the business entity should even bother seeking the artist’s permission is anathema to far too many people’s way of thinking.  So, if and when the artist makes any kind of complaint, or requests that the user remove the infringing use, she is as likely to be told that she should be “grateful for the free publicity” as she is to get a satisfactory response.  This brush-off alone can make a person want to sue somebody, and in this instance, the artist’s claim would be a slam dunk.  

But in the interests of both the copyright owner and the user in this example, a small-claim option would be a much better next step than federal court, where the infringer would end up settling rather than spend several thousand dollars to wind up owing damages and fees in excess of $200,000.  While the CASE Act was developed as an alternative for copyright owners who cannot afford federal litigation, it should also not be underestimated as an alternative venue for defendants in cases where the claimant just might go to federal court and where the respondent would almost certainly lose. 

I have opined a few times in other posts that the generalized anti-copyright narrative too often implies that everything that happens online is “cool,” and this winds up getting people into legal trouble that could be easily avoided.  If MillerCoors can screw up like this, it is only natural that less-experienced enterprises with more limited resources will make similar errors.  Better not to infringe in the first place, but if one does, the small-claim option provided by the CASE Act would be an attractive option for commercial users who naïvely make improper uses of works.  

What opponents of the CASE Act would have you believe is a twist on this narrative:  one that says, “If MillerCoors can make this kind of mistake, then average, non-commercial users are really in trouble when the small-claim option opens a floodgate of complaints against you, me, our kids, and grandma.”  I and others have explained about fourteen ways to Sunday why the small-claim option why this is fearmongering nonsense promoted by organizations that hate copyright enforcement so much, they will not even admit to some of the advantages CASE offers to respondents and abusers of DMCA takedown provisions.

It’s funny that the object lesson that triggered this post happens to involve Jason Mraz because, as far as I am aware, he is about as chill as it gets with regard to fans sharing his work in various ways on social media etc., but that does not diminish his right or rationale for restricting uses he feels are inappropriate, as was the case with the Coors Light spot.*  Mraz doesn’t need a small-claim alternative any more than MillerCoors does, but that the smaller artist just starting out does need this solution.  And just maybe, so does the start-up business who unwisely infringes her work.  

Photo by cppzone

*NOTE: Edited from original statement mentioning Mraz’s support of CASE Act, which may be true, but I was not able to verify.

CASE Act noise gets louder. And sillier.

After the CASE Act passed the House (410-6) on October 22 and moved onto the Senate, the various groups opposed to this copyright small-claim bill turned up the volume on the eerie headline that says Share a Meme.  Lose $30,000!  I and others responded that this allegation is simply not grounded in reality, and to this, Meredith Rose of PublicKnowledge replied with the tweet below …

What’s going on there is a subtle but wicked-important sleight of hand in the service of a multi-layered falsehood.  But that’s why it’s effective.  The lie is complex.  Though, oddly enough, Rose could not have picked a better example to demonstrate how disingenuous the anti-copyright groups are being about the CASE Act.  In fact, the logic is so convoluted, it is reasonable to wonder whether these people are not so much ideologues as just bad attorneys.  Who can say for sure, but here are some facts you are free to verify for yourself …

To begin, the infringement claim to which Rose links in that tweet may lack merit because it was filed by a known copyright troll, which is one reason I assume she selected this example—hoping to imply that trolling will get much worse after passage of the CASE Act.  So, I shall try one more time to describe how the Copyright Claims Board (CCB) will actually look to the copyright troll, whom the bill was specifically designed to discourage.

Whether or not that particular claim has merit, Rose’s citing it only emphasizes the fact that weak or invalid claims can be filed ad infinitum in Article III courts; and it can cost the named defendant quite a lot of money just to argue that the complaint should be dismissed.  This is precisely how an unscrupulous attorney (not just a copyright troll) uses the threat of even invalid litigation to scare settlements out of people.  By contrast, the Copyright Claims Board (CCB) provides no such mechanism of intimidation.  

Because the small-claim tribunal is meant to be used by regular people without the aid of attorneys, the CCB must review every claim for merit before it can even be considered “active” and served upon a respondent. (And yes, claims will be served, not emailed as EFF and others have alleged.)  Further, any party who files as few as two warrantless claims, will not only have those claims rejected, but will also have all other active claims vacated by the CCB on the assumption that the filing party is abusing the system. 

Then, as mentioned many times in other posts, repeat abusers of the CCB face a potential $5,000 fine and/or may be barred from access to the small-claim tribunal for up to one year. And, finally, any respondent can opt out without providing a reason. So, Rose has unwittingly highlighted why the CCB will be a barrier to claims like the one she cited.

Okay, but are memes infringing?

The next noteworthy fact about the case Rose cited is that it does not actually involve a meme.  The accused infringer apparently published a photograph to her website without license, and if that is the only evidence available, there is likely no legal ambiguity there.  Publish anything to a site you control, and you are responsible for any potential infringement claim, whether or not the claim is filed by an unscrupulous attorney. 

This goes to the next layer of nonsense in Rose’s tweet, which is really two falsehoods working in tandem.  The first is that she is conflating conduct (e.g. publishing vs. sharing) with a genre we call “memes;” and the second is the implication that posting a visual work anywhere online that has in some way been altered makes it a “meme,” which automatically makes the image itself—and the posting of it—a fair use.  Spreading this kind of confusion is a disservice to many of the people PublicKnowledge claims to defend.  

A so-called meme based on the use of someone else’s visual work can be a fair use, but it is false to believe that every alteration, like placing some text on a photo, automatically makes it a fair use.  It is of course impossible to say, on a case-by-case basis, which of the gazillion “memes” out there are probable fair uses and/or which among these images even lives in public consciousness long enough to attain the status of a “meme.”  But that ambiguity is central to the aforementioned fallacy of conflating this popular internet genre with the conduct of “sharing” memes.

What the anti-copyright folks really want you to believe is that if you see a meme on Facebook or Twitter and click “Share” or “Retweet,” you will be at greater risk for an infringement claim if the CASE Act passes.  (And then of courseyou will be subject to the maximum penalty of $30,000.)  This scare-tactic relies on the fact that all that sharing we do on social platforms does occur in a somewhat gray area of the law—that although nobody gets sued for re-sharing something that was already on, say, Facebook, this does not mean such a suit could never be filed or that a claimant could never win.  With the law, it’s best never to say never.  But …

Having said that, there are both statutory and caselaw reasons why a claim of infringement for clicking “share” on material that is already on a social platform would be very difficult to support in federal court—and, therefore, even more difficult to allege via the CCB, even if such a claim were ever filed.  The reason it would more difficult at the CCB is because that Board will not have the authority to adjudicate such an untested and delicate question of infringement.  Absent clear statuary or precedential guidance, the Board would have to reject the claim and insist that the complainant file in court. (Note, that this is an opinion and prediction based on observation.)

In addition to the legal complications, there are many practical reasons we do not see these lawsuits right now—why we are not being sued by parties, who can afford it, for sharing those memes—and these reasons have nothing to do with the absence of the CASE Act.  Probably the most common reason is that online sharing is so pervasive that many authors of works have, for better or worse, made their peace with a certain amount of remix and contributory distribution of their material.  There is no practical means of sifting through all that to determine what is and is not fair use, most of it is harmless, and the list goes on …

Small-Claim Copyright Reality 

Behind all that noise, actual independent copyright owners, whom the CASE Act was designed to serve, have neither time, interest, nor resources to explore whether or not your  “share” of a so-called meme made from their image might be an infringement.  It is simply not practical to pursue such a claim, even if it were desirable.  If Disney isn’t suing you for sharing that princess meme, you can be sure that Joanna Photographer can hardly afford to do so, even at the CCB.

The independent copyright owner, like the visual artist who makes between $30,000 and $70,000 a year from her creative work, does not have an unlimited supply of $250 filing fees to throw at copyright enforcement.  Depending on her cost-of-living needs, just four filings with an upfront cost of $1,000 can be a substantial outlay in a given year.  While it is true that one or all of those four claims could yield damage awards well worth the price of the filing, there are barriers to this outcome, not least being that an alleged infringer can opt out of the tribunal.

So, it is only common sense that the independent, small-business copyright owner is going to file claims against willful, direct infringers who clearly should have licensed the work in the first place—and usually for commercial purposes.  These are the claims that will hold up best and have the greatest likelihood of yielding a justifiable damage award—not your silly little meme share on Facebook. 

Troll Art by cosmic_fellow

No, Mike, it’s that you’re just wrong about the CASE Act.

I had to stop myself from responding on Twitter to Masnick’s comments about the CASE Act because I do not like to devolve to pure ad hominem as a form of argument.  Yet there are few things as offensive as outright nonsense disguised to sound like thoughtful consideration.  To wit, I present the following … 

Nobody has “ignored” those considerations; they just don’t make any damn sense.  Moreover, those tweets reflect an astounding degree of cognitive dissonance from a guy who is one of the loudest cheerleaders on the Tech-Utopian Squad.  Mike will dutifully turn sarcasm into a sublime choreography whenever someone thinks to criticize the design, values, policies, functions, or effects of internet companies, but he accuses supporters of the CASE Act of foolishly believing that the copyright small-claim provision will never be used improperly. Really?

For someone who cries “straw man” with some frequency, Mike will have a devil of a time finding a CASE Act advocate who has actually predicted that no bad actor will ever attempt to use the Copyright Claims Board for unmeritorious purposes.  Nobody involved with the provision is that naïve.  Create any system, and somebody somewhere will at least try to use it improperly.  No shit. That’s why the statute anticipates bad-faith use.

Unlike the major internet companies, whose founders intentionally “disrupted” our social, economic, and political world with smug disregard for any of the potential negative consequences, provisions like the CASE Act actually do imagine improper conduct.  It’s in black and white right there in the statute for all to read.  For instance, the $5,000 fine for intentionally filing bad-faith claims with the Copyright Claims Board (CCB) is the antithesis of a blind assumption that everyone will always act in good faith. See how that works?

Nevertheless, Mike believes we’re all mad not to recognize that the small-claim copyright tribunal will inevitably be used to either 1) silence someone; or 2) shake them down for cash.  Let’s consider that shall we?

On the silencing thing, imagine I want to silence Mike Masnick (just sayin’).  He has the right and ability to post hundreds of comments a day on social media, or write posts on Techdirt, and the vast majority of all that speech will not use works that implicate anyone’s copyrights.  So, as a would-be censor, I have to wait in the tall virtual grass for him to make an infringing use of one of my copyrighted works; then pay a fee and file a claim with the CCB; pace the house for several weeks while that process runs its course; and then, if Mike does not opt out of the voluntary tribunal, I will MAYBE get a judgment in my favor, IF my claim of infringement has merit.  That seems like a damned inefficient way to silence someone.

Conversely, I think the data shows that if you really want to silence a person these days, your best bet is to rally the trolls and self-righteous techbros into doxxing and harassing the hell out of them until, in some cases, they are actually forced to flee their homes and jobs for their own safety.  But Mike thinks we should worry about someone weaponizing the Copyright Office.  

In that regard, Mike’s use of the word “shake down” is provocative, but just a tad overstated.  Imagine trying to mug somebody while armed with nothing more than an index card that says, “Please, give me your wallet.”  The target of this improbable assault says, “Nah,” and walks on.  That is roughly how effective the CCB will be as a means to “shake someone down.”  

If anything, the fact that the CCB will be a voluntary dispute resolution alternative has been criticized as a potential weakness of the entire proposal, but it has to be voluntary in order to be constitutional.  Still, as I discussed in this post about a case that, for no good reason, went to the Fourth Circuit Court of Appeals, it is quite possible to anticipate real scenarios in which both claimants and defendants would want to avail themselves of the CCB—especially in conflicts where federal litigation seems likely. 

Mike and the rest of the Tech-Utopian Cheerleading Squad really need put down their pom poms, take a time-out, and ­think about what they’ve done.  Perhaps in a moment of quiet introspection, they will recognize some different systems that, despite the good intentions of those who designed them, have been abused by some pretty bad actors to truly hideous effect.  I don’t want to give it away, though.  Catharsis must come in its own time.