Tag Archive for: Attempt

Court Blocks Maine Attempt To Force Cable Providers To Sell Individual TV Channels

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For the better part of two decades, the cable industry has fought tooth and nail to prevent having to sell cable channels individually (a la carte). Historically, the cable industry’s defense of this opposition is that letting consumers buy individual channels would do two things: kill off niche channels, and raise rates on consumers. Granted you’re supposed to ignore that both things have been happening anyway. Despite streaming competition, cable rates continue to skyrocket, and cable operators themselves have been dumping less watched channels from their lineups anyway in a bid to shore up tightened margins.

The streaming sector’s impact on these issues remains a work in progress. And state or federal efforts to force cable providers to sell channels individually haven’t gone particularly well.

Case in point: back in September, Comcast sued the state of Maine for trying to force the company to sell users individual cable channels (LD 832). Comcast lawyers insisted that the new law violated the company’s First Amendment rights, and told news outlets the law would “suppress competition and result in higher consumer prices and less program diversity.” Historically, “this violates our company’s First Amendment rights” is an argument telecom lawyers throw against the wall in every case in a bid to try and see if it sticks.

In this case, it appears to be working. Comcast’s argument was twofold: the law violated Comcast’s editorial decision making right to require consumers to take bundles of programming, and violates the First Amendment’s prohibition on speaker-based regulations — since the law applies to incumbent cable providers but not other pay TV providers. It’s that latter argument that appears to have swayed U.S. District Court Judge Nancy Torresen’s decision to impose a preliminary injunction preventing the bill from taking effect. She appeared to be less swayed by Comcast’s phony concern that such laws would raise cable TV prices:

“At this initial stage, I cannot conclude that the State has carried its burden of showing that [the law] will, in fact, be likely to reduce prices and increase affordable access to cable,” she said. But she also said: “The evidentiary record is weak at this point, but the record does contain evidence that cable pricing has greatly exceeded the pace of inflation over many years. This may provide a separate special characteristic that would support differential treatment of cable operators. Because I ultimately conclude that the State has not met its burden of showing that it is likely to succeed under intermediate scrutiny, I do not need to decide this issue at this time.”

At this point it’s probably not worth trying to force cable’s hand on this subject. In large part because growing competition in the pay TV space should ultimately do the heavy lifting here. Streaming competition is completely restructuring the pay TV landscape, resulting in traditional cable operators (especially those who refuse to compete on bundle flexibility or price) losing millions of pay TV subscribers each year. Even if this law fails, competition should ultimately pressure even Comcast to begin actually listening to consumers if the company wants to remain in the pay TV business.

The real problem remains in broadband, where giants like Comcast have secured a growing monopoly thanks to US telcos that have lost interest in the fixed residential broadband market and refuse to upgrade their networks. As pay TV margins tighten from competition, giants like Comcast and Spectrum will simply raise the price of broadband, most prominently via bullshit usage caps and overage fees. And since we’ve effectively neutered most federal oversight of the barely competitive US broadband sector, it’s a problem that’s going to stick around for a while (no, 5G isn’t a panacea).

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RomUniverse To Attempt To Crowdfund Legal Defense, Which Isn’t Going Well At All

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We recently discussed Nintendo’s lawsuit against RomUniverse, part of a longstanding war on ROM sites that seems less than absolutely necessary given just how much cash the company is raking in from its retro consoles and titles. Several commenters pointed out that RomUniverse, while proclaiming that it’s a source for those who long ago purchased Nintendo games to preserve those purchases, also engages in plenty of other less than ethical behaviors. This includes offering up books and movies alongside the ROMs, for which it can’t really make the same claims. In other words, while Nintendo itself might not be the best paladin to slay RomUniverse, it’s not as though the site is on the side of the angels.

Given all of that, you would expect the operator of RomUniverse, Matthew Storman, to try to limit the damage here. That certainly doesn’t seem to be Storman’s plan, however, as he has both publicly stated he will fight the suit and is attempting to crowdfund his legal expenses.

The operator has added a donation option to the RomUniverse homepage and also launched a crowdfunding campaign on GoFundMe, setting a goal of $ 100,000 to assist with the defense.

“RomUniverse.com was founded in 2009 under the notion that users like you should have easy access to the content that you purchased and the ability to relive those childhood moments. It is because of this, that I am asking for your help,” Storman writes.  “Now I know what you’re thinking, this one person is going to take on one of the largest console/gaming manufacturers in the world? And the short answer is YES,” he notes.

To be clear, he’s probably wrong. There is a multitude of risk factors here. For starters, ROM sites have always operated on the wrong side of copyright law. Even if we would advise companies like Nintendo that they should leave them alone, they certainly don’t have to. RomUniverse can put up as many banners as they like stating that downloads should only occur if the user has purchased an actual physical cartridge previously, but that doesn’t suddenly make offering the copyrighted game content not copyright infringement.

Add to that the possibility that the owners of the other types of media RomUniverse makes available might see all of this going on and decide to get their own piece of the lawsuit pie and this huge Nintendo lawsuit could suddenly morph into a multi-plaintiff apocalypse for RomUniverse. That’s all the more so possible given Storman’s public statements.

And, finally, if RomUniverse is really relying on crowdfunding to power its legal defense, it seems that nobody bothered to show up to its fundraiser.

On the GoFundMe page, Storman notes that he’s not “greedy” or a scammer. He merely wants to defend his rights and those of others in this “unknown” landscape. In the meantime, the site remains online.

While some people may have donated to the site directly, thus far, the crowdfunding campaign on GoFundMe hasn’t gained any traction. After two days, the donation counter is still at $ 0.

For perhaps other reasons, the page for the GoFundMe for RomUniverse now returns a “Page Not Found” splash page. RomUniverse’s site now is soliciting direct donations instead.

There are enough clouds on the horizon here that Storman should probably go into damage control mode.

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US Court Says Fair Use Nullifies French Rightholder’s Attempt To Extract $2.25 Million From A California Art Scholar

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Almost twenty-three years after a US art editor was first sued by a French company for alleged copyright infringement, a US court has told the French rightholders going after him that copyright does not work that way… at least not here in the United States. (via Courthouse News)

Photos of Pablo Picasso’s artwork were taken by one of his personal friends, Christian Zervos, over the course of four decades. The rights to these 16,000 photos were obtained by Yves Sicre de Fontbrune in 1979. Several of these photos were included in books created by American art editor Alan Wofsy. Wofsy made the mistake of trying to sell these books in Paris, which resulted in the rightsholder suing him in 1996.

That lawsuit was rejected, but the Paris Court of Appeals said otherwise in 2001. It concluded that copyright infringement had occurred and that Wofsy could be held liable for $ 1,700 per future infringement. More than a decade later, de Fontbrune went back to the court with new claims after finding a copy of one of Wofsy’s book in a French bookstore. As the federal court notes in its recitation of the facts, this 2011 legal action was a bit sketchy.

Plaintiffs asserted that, in violation of the 2001 Judgment, Defendants had continued to publish The Picasso Project. Id. at 3. The summons and complaint for the Astreinte Proceeding stated that the purchased copy contained many hundreds of Plaintiffs’ photographs, and later that the “rights to [the photographs] are the property of [Plaintiffs].” Id. at 3-4. The summons and complaint also stated that the proceedings were “for the settlement of the non-compliance penalty” of the 2001 Judgment. Id. at 4. There is no evidence that Plaintiffs ever informed the [the French court] that they no longer owned the copyrights underlying the astreinte [civil penalty]. Dkt. 70-1 at 15 (Fact 30).

So, de Fontbrune was trying to backdate the infringement to collect fines linked to copyrights it no longer owned. In addition, Wofsy was not properly served with the lawsuit, resulting in de Fontbrune moving on unopposed. After being ordered to properly serve Wofsy, another attempt was made. Wofsy apparently received this notice, but did not show up to defend himself. With the proceedings being held in Paris and Wofsy residing in San Francisco, this no-show was perhaps to be expected.

Since Wofsy wasn’t there to defend himself, the French court found in favor of de Fontbrune and the IP it no longer owned. In 2012, it awarded a $ 2.25 million judgment to the former rightsholders, concluding that Wofsy’s publication of these photos violated the 2001 ruling by the Paris Court of Appeals.

After a long discussion of French court proceedings and whether or not this decision can even be reviewed by a US federal court, the California court comes to the conclusion that it can make a ruling on the enforceability of the order issued by the Paris Appeals Court 18 years ago. And that doesn’t work out well for de Fontbrune. The enforceability of foreign judgments is subject to the Recognition Act, which says these must align themselves with US laws and policies to be enforceable.

In this case, the 2001 judgment fails. Here in the United States, fair use is a thing. Because of that, the California court [PDF] says Wofsy’s use of some of the 16,000 photographs is protected, which means de Fontbrune can’t collect $ 2.25 million for infringement that didn’t actually occur — at least not under US law.

[D]efendants contend that the purpose and character of their use of the photographs should qualify as fair use. While conceding that The Picasso Project is a commercial venture, Defendants point out that their books are reference works intended for libraries, academic institutions, art collectors and auction houses, and such institutions find it an attractive reference due to its price point. Dkt. No. 70-1 at 16, 19 (Facts 33, 42). The Picasso Project also includes information about the photographed works, such as their titles, literary references, provenance, current ownership and sales information, that is generally not included in the Zervos Catalogue. Dkt. No. 70-1 at 18 (Fact 39). Plaintiffs do not contest these facts. Id. Rather, Plaintiffs argue that Defendants’ copying has a commercial purpose, which weighs against fair use. However, the mere commercial nature of a work does not create a presumption against fair use; such a presumption “would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities are generally conducted for profit in this country.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (citation and quotations omitted). Because Plaintiffs do not dispute that The Picasso Project is intended for libraries, academic institutions, art collectors, and auction houses, it falls within the exemplary uses named in the preamble of § 107 of the Copyright Act.

The court also points out the two publications in dispute — the 16,000-photo Zervos Catalogue and Wofsy’s “The Picasso Project” — are not competitive products. The reproduction of photos from the Zervos Catalogue does not replace the Catalogue, nor does it even come close to diminishing its market value.

Plaintiffs argue that they are competing products, but they provide no factual basis for this position. The Picasso Project can be purchased by individual volumes for about $ 150 per volume. Mot. Wofsy Decl. ¶ 38. When sold as a collection of all 28 volumes, it retails for either $ 2,780, $ 3,400, or $ 3,780. Id.; Reply Mooney Decl. (Dkt. No. 71-1) ¶ 3 & Attachment. By contrast, the original Zervos Catalogue is only available on the second-hand market, and a 2013 reprint is only available as a complete set of all of its volumes and sells for $ 20,000. Dkt. No. 70- 1 at 17 (Facts 36, 37). Plaintiffs do not dispute that The Picasso Project is intended for libraries, academic institutions, art collectors, and auction houses, whereas the Zervos Catalogue has a niche market due to its historic nature and high price. Dkt. No. 70-1 at 16, 18-19 (Facts 33, 41). Given their disparate markets and wildly different price points, no reasonable fact finder could conclude that the Zervos Catalogue and The Picasso Project compete.

Since three of the four factors weigh heavily in favor of Wofsy and his Picasso Project, the 2012 judgment de Fontbrune secured in France cannot be enforced in the United States.

[T]he court finds that the Defendants’ use of Plaintiffs’ photographs qualifies as fair use. The 2012 Judgment is, therefore at odds to the U.S. public policy promoting criticism, teaching, scholarship, and research. Defendants have carried their burden of showing that there is no genuine issue of material fact that the 2012 Judgment is repugnant to U.S. public policy.

Having reached this conclusion, the court will not recognize the 2012 Judgment.

And away goes a $ 2.25 million judgment that may have been awarded to de Fontbrune for works it had already sold the rights to. Fair use prevails and de Fontbrune will have to figure out some other form of rent-seeking if it wants to continue profiting from photos someone else took.

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