Silly Season

It is traditional in political reporting to refer to the run-up to primary elections as the “silly season” because of all the amazing things candidates will say while trying to appeal to different constituencies and bear up under the glare of media coverage.  Recently this time of year has also seen some developments in the copyright world that also justify some bewildered head shaking.

On the legislative front, the PROTECT IP act has been introduced in the Senate for a while now.  It is problematic even in its Senate form, since it would allow private actions to attack web domains based only on accusations of IP piracy, without the usual due process that is necessary to sue an alleged infringer.  But the act got worse, and stranger, when it was introduced into the House of Representative.  A provision was added that would role back the “safe harbor” provision for ISPs from the Digital Millennium Copyright Act and impose an affirmative obligation for web hosting services to police content uploaded by users.  This is in keeping, I am afraid, with the overall effort to force others — the ISPs and the government — to foot the bill for enforcing copyrights owned by the legacy content industries.  Discussions of this bill are all over the Internet; a representative one can be found here.

The argument that we should change the DMCA is becoming very common.  The content industries do not like the bargain they made a decade ago, and seem increasingly to want to shut down the most productive aspects of the internet in order to preserve their traditional business models.  An excellent argument for why we should not let this happen can be found in this discussion of copyright, the Internet and the First Amendment from Thomas Jefferson scholar David Post.

The real silliness, however, comes in the decision to rename the bill in the House, from PROTECT IP to ePARASITES.  I sometimes believe there is a congressional office for acronyms, staffed by some very silly people. When I first heard this new acronym, I thought it was a parody.  Although I now know that the “parasites” referred to are websites that facilitate unauthorized sharing, I initial concluded that it was a joke referring precisely to those industries supporting PROTECT IP who want the taxpaying public to bear all the costs for their failures to innovate.

Another round of silliness was created this week by the filing of a Second Amended Complaint in the lawsuit between the trade group AIME and UCLA over digital streamed video.  The judge dismissed the First Amended Complaint about a month ago but gave the plaintiffs (AIME and AVP Video) permission to refile.  This they have now done, but going through the (long) complaint, I fail to see how they have really addressed many of the judge’s reasons behind the dismissal.

A major reason behind the dismissal was lack of standing for AIME and sovereign immunity protections for the defendants.  I noted at the time that the lawsuit would really need different plaintiffs and different defendants to go forward.  Clearly AIME did not agree, since the new complaint names exactly the same defendants, simply with “and individual” added each time the previous document said they were sued in their official capacities.  This new document does not remove the claims against them in their official capacities, even though the judge already dismissed those claims, and it does not add any facts that I could see that would justify a suit against the individuals.  So the refiling really just seems to double down on the failings of the first complaint.

Also, AIME tried to rescue its “associational standing” but pointing to “injury in fact” to the association itself.  Such injury, incredibly, seems to be primarily the damage done to AIME by its relentless pursuit of this lawsuit, which it brought in the first place.  Staff time has been consumed, they say, and the reputation of the association harmed.  New members are reluctant to join.  Why any of this confers standing on AIME against UCLA is beyond me; members may not be joining because they do not want association dues spent tilting at windmills.  Also, the judge already rejected the argument that “diversion of resource” for the lawsuit was enough to establish the required showing of injury.  It is not clear to me that simply adding more detail can rescue this argument.

The new complaint again asserts that sovereign immunity was waived by UCLA when it signed license agreements with a jurisdictional clause, and by its own policy of obeying federal copyright law.  Both of these arguments were already rejected by the judge, so reasserting them seems more like a criticism of the previous decision than a new argument.

On the substantive arguments, I also can see very little that has been added that should change the outcome here.  The license between AVP and UCLA is reasserted, with the same language that caused the judge to read it in a way that undermined the first set of copyright claims.  One addition is the claim that the UCLA system is “open” (which the license does not allow) because it has a guest feature that can be turned on, but there is no assertion that it ever has been turned on in fact.  Another addition are the state law claims for tortious interference with a contract and prospective interference with a business advantage.  Like the previous state law claims, this seems entirely founded on the copyright infringement claim, so I see no reason these would not be preempted by the resolution of the copyright issue, as the previous claims were.

In both these instances, I think we see the emotion of righteous indignation overcoming reason.  The very thing, it seems, that makes this the silly season.