Questions Raised by Municipal Control of Wi-Fi

by: Jason Miller, Associate Editor, MTTLR

Politicians in Oakland County, Michigan, a wealthy suburb of Detroit, are currently implementing a plan to cover 910 square miles with free Wi-Fi.¹   San Francisco Mayor Gavin Newsom has been trying to promote free public Wi-Fi and, though the plan has run into serious problems, a non-binding public vote will be held in this November’s municipal election ballot.²   Dozens of city governments have put together municipal Wi-Fi programs,³   though these programs often turn out to be more hype than substance.⁴   The economics behind municipal Wi-Fi are also troubling. As voters and elected officials consider expanding local government’s role in providing or contracting for Internet, there are some other unique questions worth asking.

Politics

Libraries often face disputes over content. From banned books to border-line pornography to filtering the Internet, libraries are often subject to political decision making. Should your mayor to be in a position to filter Internet content? Angry parent groups could take their gripes to city council meetings, and private providers contracting for an exclusive deal may tailor their offerings to win support from activist groups.

Michigan’s Republican Senate Majority Leader blocked access among all senate employees to a liberal blogger’s website earlier this year, though he later relented.⁵   Is it safe to trust politicians with power when it comes to the Internet?

Hate groups

Internet providers often prohibit certain uses in their terms of service. When Earthlink decides it doesn’t want the KKK to use Earthlink’s servers for a website, there are no First Amendment implications. But what about Earthlink doing so as the exclusive provider, or almost exclusive provider, in a town? Or if a local government provides and markets the service itself? Will racist and other unpopular groups be able to bring First Amendment claims to post their views?

Police

The federal government and the PATRIOT ACT are responsible for many electronic privacy concerns. However, local government’s providing or contracting Wi-Fi services should also raise privacy concerns. If your email is housed on servers within a county building, what steps will the sheriff’s department have to go through to get it? Will providers operating under lucrative government contracts be too willing to turn over personal information?

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¹  Wireless Oakland Frequently Asked Questions, http://www.oakgov.com/wireless/faq/ (last visited Oct. 31, 2007).
²  Posting of Miguel Helft to Bits, http://bits.blogs.nytimes.com/2007/08/31/san-franciscos-wi-fi-fog/ (Aug. 31, 2007, 15:47EST).
³  Anthony Sciarra, Note, Municipal Broad Band: The Rush to Legislate, 17 Alb. L.J. Sci. & Tech. 233, 235 (2007).
⁴  Sharon E. Gillett, Municipal Wireless Broadband: Hype or Hope?, 79 S. Cal. L. Rev. 561 (2006).
⁵  ZDNet Government, http://government.zdnet.com/?p=3351 (Aug. 7, 2007, 16:18EST).

RIAA Defendant Challenges Statutory Damages - Problems of Proof and Availability as Reproduction

by: Nancy Sims, Associate Editor, MTTLR

In 2003, the RIAA began a campaign to protect the music of its members by bringing infringement suits directly against individual users of file-sharing software.¹   In the four years since, the RIAA has approached over 20,000 individuals regarding file-sharing activities,² but few related cases have reached the courts because most targets of such suits settle.³  A few individuals have challenged file-sharing charges,⁴ and some have even been awarded attorney's fees.⁵   In the first jury trial in an individual-defendant music filesharing case,⁶ recently held in Northern Minnesota,⁷ the jury found defendant Jammie Thomas liable for 24 counts of infringement, and awarded statutory damages of $9,250 per song, for a total of $222,000 in damages.⁸   Thomas and her lawyer soon announced their intention to appeal the verdict.⁹

Thomas and her defense team initially announced that her appeal would focus on jury instruction no. 15,¹⁰ which stated that the act of making files available on a peer-to-peer network was infringement of the distribution right, "regardless of whether actual distribution has been shown."¹¹   Other commentators agree that this is a key, and legally unsettled, issue.¹²   However, it appears that Thomas and her team have tabled the direct challenge to the jury instruction for now.¹³  They instead filed a notice of remittitur, asking that the jury award be reduced as grossly excessive in violation of the Due Process clause.¹⁴

As Thomas' motion acknowledges,¹⁵ case law and legislative history show that deterrence and punishment are legitimate purposes of statutory damages.¹⁶   Thomas claims, however, that the punitive damages must be limited under substantive due process analysis.¹⁷   Thomas argues that BMW of North America v. Gore¹⁸   and State Farm v. Campbell¹⁹   are applicable to "any grossly excessive monetary award that is imposed for the purposes of punishment and deterrence."²⁰   Since no damages were shown, Thomas argues, the full amount of the award should be considered punitive.²¹   This is at least somewhat supported by statements of one of the Thomas jurors that they wanted to "send a message" by choosing the amount they did, "that you don't do this, that you have been warned."²²

Thomas also argues in the alternative that even if Gore and Campbell are not applicable to statutory damages, the award can be reviewed to determine whether it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable."²³   This assertion gains some support from class action cases: courts have sometimes refused to grant class certification where aggregate statutory damages would not be punitive, but might be grossly disproportionate to the harms caused.²⁴   Although courts prefer to grant class certification even in the face of such difficulties, they acknowledge that they can reduce damages if necessary under due process.²⁵

Both of Thomas' arguments depend on the judge making some sort of calculation of proportionality of awarded damages to actual harms. Thomas' motion suggests that record companies' recoup approximately $0.70 of the average $0.99/song price of online music sales, and argues that, "pretending that defendant’s downloading went to someone other than plaintiffs’ agents," the total damages for the 24 files in question would have been $16.80.²⁶   Citing Gore and Campbell, they suggest that 10 times actual damages should be the maximum cap on statutory damages, for a maximum award in this case of about $151.20.²⁷   Alternatively, they point out that plaintiffs acknowledge that the price of an individual CD is about $20, and contend that, even if this much higher amount is the actual damages suffered by plaintiffs, the ratio of actual to statutory damages still far exceeds that suggested in Gore and Campbell.²⁸

A major justification of statutory damages is that they are provided for when actual damages are difficult to prove or calculate.²⁹   It is clear in this case that actual damages are difficult to prove for both parties, and that this fact cuts against arguments on both sides. Thomas' calculation of the actual damages appears to be based on an assumption that at most one person other than the plaintiffs' representatives downloaded any of the files she made available.³⁰   It is unlikely that she can prove this. On the other hand, even assuming that the recording industry does suffer actual damages of $20 per download, each song would have to have been downloaded 462 times to make the $9,250 per song award exactly proportionate. Such a volume of downloading was not shown in the trial, with jury instruction no. 15 allowing for judgment against Thomas regardless of proof of actual distribution.³¹   With no knowledge of the actual number of downloads (if any), the question of proportionality will be a difficult one for the judge to resolve. Since Thomas' motion to reduce the damages obliquely revolves around the question of actual damages, which have not been proven, further appeal or retrial seems likely.

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¹  Electronic Frontier Foundation, RIAA v. The People: Four Years Later 2 (2007), available at http://w2.eff.org/IP/P2P/riaa_at_four.pdf.
²  Id.
³  Id. at 6.
⁴  See Atlantic Recording Corp., et al. v. Tanya Andersen, No. 05-933 (D. Ore 2005) (resolved when parties stipulated to a dismissal with prejudice).
⁵  Capitol Records, Inc. v. Foster, 2007 U.S. Dist. LEXIS 29131 (W. D. Okla. 2007) (finding defendant was prevailing party after a court-ordered dismissal with prejudice, and awarding fees), order available at http://www.eff.org/files/filenode/Capitol_v_Foste/order_granting_fees.pdf), reconsideration denied by Capitol Records, Inc. v. Foster, 2007 U.S. Dist. LEXIS 33227 (W.D. Okla., Apr. 23, 2007); but see Interscope Records v. Leadbetter, 2007 U.S. Dist. LEXIS 65955 (W. D. Wash. 2007) (denying fees when record company voluntarily dismissed case against defendant.
⁶  Eric Bangerman, First RIAA trial gets under way with jury selection, opening statements, Ars Technica, Oct. 2, 2007, http://arstechnica.com/news.ars/post/20071002-first-riaa-trial-gets-under-way-with-jury-selection.html; 16-2 Mealey's Litig. Rep. Intell. Prop. 24 (2007).
⁷  Capitol Records Inc., et al. v. Jammie Thomas, No. 06-cv-1497 (D. Minn. 2007)
⁸  Special Verdict Form at 2-8, Capitol v. Thomas, available at http://www.muddlawoffices.com/RIAA/Virgin%20Thomas/100%20Special%20Verdict%20Form.pdf; 16-2 Mealey's Litig. Rep. Intell. Prop. 24 (2007).
⁹  Eric Bangerman, Thomas to appeal RIAA's $222,000 file-sharing verdict, Ars Technica, Oct. 8, 2007, http://arstechnica.com/news.ars/post/20071008-thomas-to-appeal-riaas-222000-file-sharing-verdict.html.
¹⁰  Id.
¹¹  Jury instructions at 18, Capitol Records Inc., et al. v. Jammie Thomas, No. 06-cv-1497 (D. Minn. 2007), available at http://blog.wired.com/27bstroke6/files/jury_instructions.pdf.
¹²  Bangerman, supra note 9; Fred von Lohmann, Capitol v. Thomas: The Key Appeal Issue, Deeplinks, Oct. 9, 2007, http://www.eff.org/deeplinks/2007/10/capitol-v-thomas-key-appeal-issue.
¹³  Bangerman, Appeal in RIAA case to focus on "unconstitutionally excessive" punishment, Ars Technica, Oct. 15, 2007, http://arstechnica.com/news.ars/post/20071015-appeal-in-riaa-case-to-focus-on-unconstitutionally-excessive-punishment.html
¹⁴  Id.
¹⁵  Motion for Remittitur at 2, Capitol v. Thomas, available at http://blog.wired.com/27bstroke6/files/remittiturMot.pdf [hereinafter Motion for Remittitur].
¹⁶  Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 852 (11th Cir. 1990) (citing Warner Bros., 877 F.2d at 1126). See also Fitzgerald Publishing Co., 807 F.2d at 1117; F.W. Woolworth Co., 344 U.S. at 233.
¹⁷  Motion for Remittitur, supra note 15 at 7, (citing Mo. Pac. Ry. v. Humes, 115 U.S. 512, 523 (1885))
¹⁸  BMW of N. Am. v. Gore, 517 U.S. 559 (1996).
¹⁹  State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).
²⁰  Motion for Remittitur at 9.
²¹  Motion for Remittitur at 11.
²²  David Kravets, RIAA Juror: 'We Wanted to Send a Message', Threat Level, Oct. 9, 2007, http://blog.wired.com/27bstroke6/2007/10/riaa-juror-we-w.html.
²³  Zomba Enterprises v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) (citing St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919)).
²⁴  Murray v. New Cingular Wireless Servs., 232 F.R.D. 295, 303 (D. Ill. 2005) (citing In re Trans Union, 211 F.R.D. at 347-5).
²⁵  Id. at 304 (citing Parker v. Time Warner Entm't Co., L.P., 331 F.3d 13, 22 (2d Cir 2003)).
²⁶  Motion for Remittitur at 2.
²⁷  Id.
²⁸  Id. at 3.
²⁹  Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 850-51 (11th Cir. 1990) (citing F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 231-33 (1952); Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1126 (2d Cir. 1989)).
³⁰  See Motion for Remittitur at 2.
³¹  Motion for Remittitur at 3.

An Overview of Problems Raised By GPS Supervision Laws

by: Brandon Saunders, Associate Editor

There are a number of concerns raised by the flurry of new laws aimed at toughening the community sanctions for persons convicted of sexually-based offenses. Many of these laws are patterned and named after Florida’s 2005 Jessica Lunsford Act (Jessica’s Law), which bears the name of the young girl raped and murdered that same year.

California’s version of the law, the Sexual Predator Punishment and Control Act (SPPCA)¹, was passed by ballot last year and has already encountered a number of challenges. Receiving much of the attention recently are the residency restrictions imposed on paroled sex offenders.²  Somewhat lost in the debate, though, has been the question of the increasingly mandatory GPS supervision of sex offenders. Leaving aside the logistical problems³ and the questionable effectiveness of the technology⁴, there are also the legal issues raised by the tracking, which is required for the lifetimes of a growing segment of such offenders.

A District Court held in February of this year that California’s SPPCA did not apply to those offenders released prior to the law’s passage.⁵  The ruling, based on the lack of demonstrated legislative or voter intent, stops short of asserting that such sanctions cannot apply retroactively, and the decision seems to invite future legislation that would facially (or through “very clear” voter intent) widen its scope.

The same law is also creating problems for California state agencies faced with the voters’ mandate but uncertain how to implement the new restrictions, or even who exactly is responsible for the implementations.⁶

These and other uncertainties in this wave of legislation are indicative of a public policy that finds axiomatic the notion that the cure to social ills is only the next generation of technology away. And the push to implement law at the pace of these developments in technology is creating at least as many problems as it’s addressing.

While the best solution to the problem of sex offender recidivism will almost certainly involve some of the capabilities of community tracking for some sexually violent offenders, our efforts until now have been far more politically appealing than effective. The push to apply this technology needs to be tempered by a thorough look at not only the extent of the problem, but the limits of the technology.

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¹  The Sexual Predator Punishment and Control Act: Jessica’s Law, http://www.83yes.com/language (last visited October 20, 2007).
²  Andy Furillo, Moving In on Sex Offenders, SACRAMENTO BEE, October 12, 2007, at A4, available at http://www.sacbee.com/111/story/428345.html (last visited October 20, 2007).
³  Sentencing Law and Policy, http://sentencing.typepad.com/sentencing_law_and_policy/(April 14, 2007, 13:30 EST).
⁴  Randy Dotinga, Attack of the Perv Trackers, WIRED, http://www.wired.com/science/discoveries/news/2006/11/72094 (last visited October 20, 2007).
⁵  Doe v Schwarzenegger, No. 06-6968 (D.N.D.Ca. Feb 22, 2007), http://prop83.org/Order%20of%20Dismissal.pdf.
⁶  Michael Rothfield, Some Sex Offenders Go Untracked, L.A. TIMES, October 19, 2007, available at http://www.latimes.com/news/local/la-me-offenders19oct19,0,6116786.story, (last visited October 20, 2007).

Stricter Copyright Rules for Fashion: A Faux Pas

by: Amy Duvall, Associate Editor, MTTLR

It has been a tough year for Forever 21. Over the past year, the down-market fashion merchandiser has been hit by several lawsuits (19 as of September, according to The Trademark Blog).¹ The issue is whether Forever 21’s “borrowing” from the lines of fashion designers crosses the line into copyright violation.

In June 2007, Gwen Stefani filed a complaint in District Court, alleging false designation of origin², and common law trademark infringement against Forever 21 for allegedly copying her heart design trademark. Stefani alleges that Forever 21 infringed upon her “Harajuku Lovers” design, rendering the two “virtually indistinguishable”. She is seeking injunctive relief and damages from the profits that Forever 21 has earned from the alleged infringement of her design.³

(a) Stefani purse	(b) Harajuku Lovers logo	(c) Forever 21 design

Designer Diane von Furstenberg also sued Forever 21 for copyright infringement, claiming that the retailer copied one of her popular dresses down to the pattern, colors, and cut. Both dresses are silk and made in China. “The difference in prices [$32 versus $325] likely has something to do with the premium put on the designer eye, product development on the part of von Furstenberg, the manufacturing conditions and the quality of the material.”⁴

While popular clothing designs have been knocked off and sold on street corners for decades, von Furstenberg’s attorneys claim that “the harm done [here] is probably greater. Consumers are more likely to think they’re buying the real thing at a retail outlet like this one, as opposed to a street corner. When the quality isn’t there, as it ultimately isn’t, the consumers blame the brand.”⁵ The two parties settled out of court on September 6, 2007 for an undisclosed amount.⁶

DVF Cerisier Dress vs. Forever 21 Silk Sabrina Dress⁷

Anna Sui has not just sued Forever 21⁸, she has fought back, creating t-shirts depicting Forever 21’s founders Don and Jin Chang on “wanted” posters.⁹ However, this suit is ironic given that she has made a career out of “resuscitating, revamping, and rethinking the vintage fashions of the 1960s and ‘70s, the decades when she was young.”¹⁰


Elena Dahl models the "Forever WANTED" T-Shirt
Mollye Chudacoff¹¹
High fashion designers are not just fighting back against Forever 21 and other imitator retailers – they have gone to Congress as well. Legislation is currently pending in both the House and the Senate to provide greater copyright protection for fashion designs. In the Senate, a bill sponsored by Charles Schumer (D. New York) would extend copyright protection to cover fashion designs.¹² While the current U.S. copyright law protects labels, logos, and distinctive embellishments, this bill would cover the whole “look” of an article of clothing – meaning pattern, color, and cut would now be protected. The House has similar legislation pending (sponsored by Bill Delahunt (D-Mass)).¹³

While it is understandable that designers are angry that down-market copycats like Forever 21 appear to be copying their designs, their actions, in the form of lawsuits, are not necessarily in the best long-term interests of the high fashion industry. In contrast to the more stringent intellectual property protection for music, film, or literature, the courts have held that, for fashion, “imitation is the life blood of competition.”¹⁴ Imitation is essential to the fashion industry in creating trends – “every season we see fashion firms ‘taking inspiration’ from others’ designs. And every season we see trends catch on and have a moment of wide appeal, only soon to become overexposed and die.”¹⁵

Another problem with copyrighting fashion is that many judges consider clothing to be a “useful article ... useful articles standing alone may never be [copyrighted].”¹⁶ However, if a part of clothing can be considered “conceptually separate” from their subsidiary utilitarian function, the “conceptually separate part of the clothing may be copyrighted. For example, an ornamental belt buckle is copyrightable, but the belt itself is not.¹⁷

While some high fashion designers claim that they are losing profits due to imitators like Forever 21, any lost profits are probably more due to economic downturns than down-market competition. The markets for designer merchandise and imitation merchandise are distinct, with very little overlap. Despite von Furstenberg’s claim that her designs had been stolen, the alleged theft is unlikely to have cost her money, as it is unlikely that a woman who can afford to buy von Furstenberg’s original would choose to buy the lower-quality Forever 21 version instead.

Rather than suing imitators, high fashion designers would be better off ignoring them. Stores like Forever 21 may actually enhance the prestige of and desire for the original high fashion brand. For many women, owning their first Coach or Kate Spade purse is a fashion milestone. Later in life, these same women who bought the down-market imitation of the Diane von Furstenberg “it” dress will buy the real thing, once they have the financial wherewithal to do so.

By limiting the ability of companies like Forever 21 to imitate runway trends, fashion designers are cutting off an important gateway for women (and some men) to know and begin to covet their brands. As any fashionista knows, there is a world of difference between the imitation and the real thing. Many women will not buy the store-brand version when they can buy the original instead.

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¹ The Trademark Blog, http://www.schwimmerlegal.com/2007/09/19_lawsuits_aga.html (Sept. 17, 2007, 11:02 EST).
² 15 U.S.C. 1125(a).
³ Complaint, Harajuku Lovers, LLC v. Forever 21, Inc., No. CV-07-3881-ODW (SSX) (C.D. Cal. filed June 14, 2007), available at http://images.eonline.com/static/news/pdf/gwen_stefani_forever21_lawsuit.pdf.
⁴ Danica Lo, Designer Sues: ‘Evil’ Twin von Furious at ‘Copycat’, NEW YORK POST, Mar. 29, 2007, available at http://www.nypost.com/seven/03292007/news/regionalnews/designer_sues_regionalnews_danica_lo.htm.
⁵ Id.
⁶ Settlement, Diane von Furstenberg Studio, LP. v. Forever 21, Inc., 07 Civ. 2413 (VM) (S.D.N.Y. Sept. 7, 2007), available at http://www.counterfeitchic.com/Cases/cic/3/dvf_forever_settle.pdf.
⁷ Posting of retrogurl to nitro:licious, http://www.nitrolicious.com/blog/2007/03/28/diane-von-furstenberg-sues-forever-21/ (Mar. 28, 2007).
⁸ See Complaint, Anna Sui Corp. v. Forever 21 Inc., No. 07 CV 3235 (S.D.N.Y. filed Apr. 23, 2007), available at http://counterfeitchic.com/Cases/sui.pdf (Oct. 13, 2007).
⁹ Eric Wilson, Along Various Roads, Including the Yellow Brick, N.Y. TIMES, Sept. 13, 2007, available at http://www.nytimes.com/2007/09/13/fashion/shows/13REVIEW2.html.
¹⁰ Lynn Yaeger, Sui Generis?: Anna Sui, others sue Forever 21: How original are you?, THE VILLAGE VOICE, Sept. 25, 2007, available at http://www.villagevoice.com/nyclife/0739,yaeger,77905,15.html.
¹¹ Id.
¹² Design Piracy Prohibition Act, S. 1957, 110th Cong. (2007).
¹³ Design Piracy Prohibition Act, H.R. 2033, 110th Cong. (2007).
¹⁴ Am. Safety Table Co. v. Schreiber, 269 F.2d 255, 272 (2d Cir. 1959).
¹⁵ Kal Raustiala and Christopher Sprigman, How Copyright Law Could Kill the Fashion Industry, THE NEW REPUBLIC, Aug. 14, 2007, available at http://www.tnr.com/doc.mhtml?i=w070813&s=raustialasprigman081407.
¹⁶ Whimsicality, Inc. v. Rubie’s Costume Co., 891 F.2d 452, 544 (2d Cir. 1989).
¹⁷ Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980).