Raspberry Berate

by Winthrop & Weinstine, P.A.

About two weeks ago, the artist (known as, then formerly known as, and now again known as) Prince filed a copyright infringement suit against 22 “accused bootleggers” (most likely fans) that had been posting links to unauthorized concert recordings.  (See story here.)  Apparently, due to the backlash from fans and, more importantly, due to the fact that the allegedly infringing links had been removed, Prince voluntarily dismissed his suit without prejudice yesterday.  (Filing here.)  For those of you that are not lawyers, the “without prejudice” tag basically means that Prince can sue again later if he feels so compelled.

Now, I’m probably one of the few people hailing from Minnesota that thinks Prince is pretty overrated.  I’ve been to a show and I had a good time, but Prince’s copyright “bullying” really leaves a bad taste in my mouth.  I suspect many other casual listeners of his music feel the same way.  Heck, this type of behavior could even alienate hardcore fans as the recent ”fan outlash” demonstrates.

So why am I ranting about  Prince – an artist that I only have a marginal interest in?  Two reasons.

First, this gives me an opportunity to highlight the ever increasing problem of “copyright” bullying.  My colleague, Tim Sitzmann, did an insightful post on Prince’s copyright bullying back in April of 2013, which included discussion of when Prince let slip the dogs of war over a 30 second Youtube video from 2007 showing a toddler dancing to “Let’s Go Crazy.” (Story here; video here.)  We hear often of the ills of trademark bullying, but I feel like less attention is devoted to copyright bullying.  Frankly, this is surprising to me because I think trademark bullying is more justifiable than copyright bullying.  In trademark law, owners are legally required to vigorously enforce their rights because unchallenged infringements can lead to an argument that the trademark owner has abandoned or slept on their rights.  There is a fine line between vigorous protection of your trademark and potential “bullying.”

The same is not generally true of copyright law.  A copyright holder doesn’t need to pursue everyone that might have downloaded a song from bittorrent for their copyright to remain strong.  When people get caught ”bullying” with respect to copyrights, its not the result of a valid, but perhaps slightly misguided, protection strategy.  Instead, I think its generally the result of either: (1) narcissistic tendencies which compel people to demand that they have complete control over everything about their “art,” even after they’ve released that art into the world for public consumption and for a healthy profit; (2) a desire to stamp out legitimate competition or criticism; or (3) a desire to use the mere threat of litigation to extract a piece of the pie to which the copyright holder is not legally entitled.  Simply stated, I don’t get that worked up about all trademark bullying because I can understand how it might happen in cases where the alleged bully has legitimate and good-faith intentions.   On the other hand, I feel like the majority of copyright bullying is devoid of any valid motivation, and it makes me want to puke.  To me, copyright bullying is a nauseating symptom of our ailing copyright system which, due to a variety of reasons, has gone far beyond what was necessary to satisfy the constitutional mandate “To Promote the Progress of Science and the useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries.”

The second reason I wanted to talk about this Prince case is that it highlights a relatively cutting edge legal issue; specifically, whether linking to or embedding infringing material on your webpage is itself an act of infringement.  As of today, this is a largely unsettled issue in both the United States and Europe, and there are many differing viewpoints.  (See here, here, and here.)  This issue is also on the front burner again due to Quentin Tarantino’s suit against Gawker for linking to an unauthorized copy of his “Hateful Eight” script.  On the U.S. legal front, the most authoritative court decision to date seems to indicate that hyperlinking and embedding cannot be infringement even if the links direct users to unauthorized copies, much like appears to have happened in the Prince case.  Writing for the Seventh Circuit Court of Appeals, Judge Posner explained in Flava Works, Inc. v. Gunter, the act of linking to the work is not itself an act of infringement because linking is not an act of copying.  Similarly, when a person clicks on the link, they are not copying the work either, and are therefore not infringing.  This means that the linker cannot be contributorily infringing.  Concisely stated, Posner basically limited the population of bad guys to the people uploading the unauthorized copy in the first place.

Now, this is not to say that Prince’s lawsuit was totally devoid of legal merit, or that it was destined to fail.   His case was venued in the Northern District of California, meaning that it would be decided under Ninth Circuit law rather than Seventh Circuit law.  Its very possibly that the Ninth Circuit would consider the issue differently the Seventh Circuit.  But the mere possibility of a valid infringement claim does not, in my mind, justify copyright bullying.  In a case like this, where it is pretty obvious that the actual damage (whether monetary or reputational) to Prince arising from the linking was nil, it truly does take a bully to initiate legal action.  Its the equivalent of a hulking meathead picking on a little kid just because they can.  And nothing you say to me about ”ensuring a high quality experience” is going to change my mind.  I’m glad the case was dismissed, but I don’t think it should have ever been brought in the first place.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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