This isn't surprising, even if it is a bit disappointing. Led Zeppelin has long been accused of copying others songs, and there are actually a bunch of videos on YouTube detailing examples. Here's just one:
Some of the examples do sound like pretty blatant copies, while others are, at best, homages or inspirations, rather than direct copies. Even so, it's difficult to get too worked up about these complaints. It should be pretty clear that even where the band copied others, it did so in a different way that often got much more attention to the work than anything the original version got. Either way, there have been a few new lawsuits brought against Led Zeppelin recently, despite it being decades since the band was actually a thing. A few years ago, we wrote about folk singer Jake Holmes suing Jimmy Page for copying parts of the Led Zeppelin song "Dazed and Confused." That case appears to have been settled out of court.
More recently, the estate of Randy Wolfe (aka Randy California), who was the guitarist for the band Spirit and wrote the song Taurus, sued the band over the song "Stairway to Heaven," whose guitar line is obviously quite similar to Taurus. You can definitely hear the similarities, though the chord progression is pretty basic (and the two songs are not identical).
Of course, another video comparing the two notes that both songs are actually most similar to Bouree in E Minor by Johann Sebastian Bach -- raising questions as to whether there's any legitimate copyright at all here:
Either way, federal district court judge Gary Klausner rejected a variety of claims from Zeppelin's Robert Plant and Jimmy Page and said that the case needs to go to trial in front of a jury. That's going to make things difficult for Plant and Page. As with the Blurred Lines trial last year, you see that many people freak out when they hear two songs are pretty similar and assume that something wrong must have happened. Of course, that's not how copyright law is supposed to work, but alas, that's what years of the big legacy industries brainwashing the public on copyright has resulted in.
Of course, as we've noted in the past, tons of songs have similar chord progressions that can lead to similar sounding songs. It's why there are multiple comedy routines pointing this out:
There's only so much that can be done with musical chord progressions and some work really well and lead to a lot of similar sounding songs. And that's not a bad thing. Some of them, quite likely, are inspired by others. In the Stairway to Heaven case lots of people point out that Led Zeppelin and Spirit toured together early on. So there's a bit of "smoke" that leads people to scream fire (ignoring of course, that Bach came first). But again, does this really matter? Wolfe didn't sue in the decades since the two songs were released. It was only many years later, after his death, that his estate suddenly decided to make a money-grab out of it.
What remains is a subjective
assessment of the ‘concept and feel’ of two works . . . a task no more suitable for a judge than for a
Thankfully, Klausner does reject comparisons between the performance style between the two songs, noting that that's different than the composition itself (the work that is actually covered by the copyright in question). But, again, that was also true in the Blurred Lines case and the jury more or less ignored it, because the songs sounded similar. So, again, there seems to be a good chance that Plant and Page will lose this case because a jury will think the two songs sound too similar. But sounding too similar isn't how copyright law is supposed to work.
For years, we've talked about the importance of anti-SLAPP laws that help quickly toss out lawsuits whose sole purpose are to silence critics. A key point that we've made is the need for a federal anti-SLAPP law, because until then, we're at the mercy of a patchwork of state laws. Some states have no anti-SLAPP law. Some have weak ones. A few have strong ones. In just the past month alone we've discussed Florida strengthening its anti-SLAPP law, and Nevada's attempt to weaken its anti-SLAPP law. Meanwhile, a court in DC issued a ruling that greatly limited the effectiveness of DC's anti-SLAPP law.
And now... Washington State has just ruled its anti-SLAPP law unconstitutional. The full ruling is worth reading, but if you want to dive deep, Ken "Popehat" White has excellent "lawsplainer" as well. In short, this particular anti-SLAPP had a feature unlike most others -- and that was the problem. Basically, it requires the plaintiff "to establish by clear and convincing evidence a probability of prevailing on the claim." Most states, on the other hand, use lesser standards, involving "sufficient" evidence or something similar. The problem, as the Washington court ruling notes, is that by making the standard "clear and convincing" it requires the judge to weigh the evidence. And that's a problem, the court decided, because then the judge is effectively acting as a jury -- thus depriving the plaintiff of a constitutionally guaranteed jury trial:
Thus, [the Washington anti-SLAPP law] creates a truncated adjudication of the merits of a
plaintiffs claim, including nonfrivolous factual issues, without a trial. Such a
procedure invades the jury's essential role of deciding debatable questions of fact.
In this way, [the anti-SLAPP law] violates the right of trial by jury under article I,
section 21 of the Washington Constitution.
In short: the court is saying that the anti-SLAPP would be okay if it were more like a summary judgment situation, wherein the judge didn't have to weigh any of the evidence on the merits. Once it gets to that stage, however, it's taking on the role of a jury. As Popehat notes, this might impact some of the stronger anti-SLAPP laws out there, but it's fixable, just by changing the standard. Unfortunately, though, that does lower the power of some anti-SLAPP laws:
Fortunately, the fix is relatively simple — all state legislatures have to do is define the plaintiff's burden carefully so that it resembles the summary judgment burden — the burden to produce admissible evidence which, if believed, is enough to win. Practically speaking, that will continue to weed truly frivolous cases out.
Speaking as someone who hates censorious and vexatious lawsuits, it would be nice, on some level, if plaintiffs suing over speech had to prove that their evidence was not just sufficient but strong. But that requirement has always been vulnerable to attack.
This ruling will only impact the more aggressive anti-SLAPP statutes, not the most common ones.
Following last week's decision by a jury that Michael Robertson could be held personally liable for songs that he "sideloaded" into his MP3Tunes music locker via the site's Sideload.com feature, the jury has now issued a verdict so complicated that no one is quite sure how much Robertson is being ordered to pay, but it's believed to be in the range of $41 million. The verdict seems questionable on a variety of levels, not the least of which is that MP3Tunes apparently had, and followed, a clear DMCA takedown policy (which an earlier court ruling had found to be sufficient). Where this case became more complicated was over the question of whether or not the company had "red flag knowledge" of infringement and whether Robertson himself was liable, in that he'd "sideloaded" certain songs that he'd found publicly available elsewhere online into his music locker. The details of the apparently very complex ruling will be important, but anyone who runs a cloud computing service might want to pay attention to this case, as it's going to be a rather important one as it moves through the appeals process.
The key issue: the jury instructions were explicit that the jury not award Apple based on Samsung's profits for any utility patent infringements. But, in looking through the awards, it became clear that this was exactly what the jury did. Note that all of this came about in response to Apple's attempt to increase the award above $1 billion -- and, as a result, the reward has now been massively reduced.
Apple’s motion for an increase in the jury’s damages award is DENIED. The Court declines to determine the amount of prejudgment interest or supplemental damages until after the appeals in this case are resolved.
Because the Court has identified an impermissible legal theory on which the jury based its award, and cannot reasonably calculate the amount of excess while effectuating the intent of the jury, the Court hereby ORDERS a new trial on damages for the following products: Galaxy Prevail, Gem, Indulge, Infuse 4G, Galaxy SII AT&T, Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Galaxy Tab, Nexus S 4G, Replenish, and Transform. This amounts to $450,514,650 being stricken from the jury’s award. The parties are encouraged to seek appellate review of this Order before any new trial.
And yes, the judge clearly called out the jury:
... it is apparent that the jury failed to follow the Court’s instructions on the law, and awarded damages based on a legally impermissible theory. This award cannot stand.
Either way, this is far, far, far from over. There needs to be a new trial just on damages and there are the various appeals. Stay tuned, because unless the two companies settle (and they've shown little inclination on that front), we've still got a few more years of this mess.
With Google still holding the search engine crown, they're obviously going to be the target of a myriad of lawsuits. Defamation has played a role in the legal life of the search giant for some time now, even though the entire basis for technology behind the search results is in what the internet community at large does, rather than any active role by Google. That's what makes this kind of thing so silly. We previously wrote about autocomplete defamation cases, for instance, in which autocompletes are generated based on common searches, but people still want to hold the search engine accountable. We also had the story about the minority owner of the Miami Heat who didn't like the fact that a picture of him doing his best dog-with-peanut-butter-in-its-mouth impression showed up in search results. But, hey, at least he was suing over a picture that actually was him.
Not so for Milorad Trkulga, an elderly man from Melbourne, Australia, who has been awarded $200,000 from Google because the search engine's image results also conjured up pictures of Tony Mokbel, an apparent "Australian gangland figure."
The images were posted after Mr Trkulja was shot in the back by an unknown gunman while eating with his elderly mother at a St Albans restaurant in June 2004. When Mr Trkulja's name was typed into Google's image search, photos had appeared of him alongside gangland figure Tony Mokbel.
From what I can gather at the following related link, Trkulja was indeed shot while at a restaurant as part of some kind of infamous gangland wars that occured in 2004, hence the bridging link to a gangster. When news publications wrote up the story, they included images of both Trkulja and Mokbel, which likely caused their pictures to show up together in a search of the former's name. Trukulja, for reasons that escape me, thought that this was defamation and took Google to court. Google argued that they weren't publishing any of the material, only indexing search results. This, apparently, did not impress the jury.
However, the jury found Google's defence of the images broke down because it did not take any steps to remove the images from its searches once Mr Trkulja's lawyers contacted the company. The jury found the search engine was not liable for the search results themselves, as Mr Trkulja had incorrectly filled out a form for reporting offensive material by not including the URL of the content to which he objected.
And this is where I go from bemused to confused, so perhaps there's an expert in Australian law out there somewhere who can help out on this one. The jury decided that Google merely indexing results doesn't matter if Trkulja asked them to take the images off of search results, even though the jury acknowledges they aren't liable for those results and find that Trkulja didn't provide the actual URLs of the pictures he wanted removed. That would be like me walking up to a random person on the street, tapping them on the shoulder, telling them I didn't like something they said once but couldn't remember exactly what it was that offended me, demanded an apology, and then got a free down payment on a mansion when said random person didn't comply.
Beyond that...what the hell? So images of gangsters showed up in image results because you got shot in Australian gangland wars (seriously, I thought you guys all fought with machetes). How is any of this a problem? I imagine that if you have an atypical name, search results of all kinds of people are going to show up in Google. Hell, let's just test it out with my own name and see what happens. I'm sure the first image result of my name, Timothy Geigner, won't be all that bad.
Oh, hell no. This injustice will not stand. Mike, get our lawyers on the phone. It's mansion time.
Late Friday afternoon, the jury in the Apple/Samsung patent dispute surprised just about everyone by telling the court it had reached a verdict. Given the number of complex issues it needed to go through, most experts expected it to take well into this week. According to observers in the courtroom, one of Apple's lawyers was so surprised and unprepared that he had to rush back to court without a suit, and showed up in a polo shirt. The quickness of the decision certainly resulted in some questions about just how thoroughly the jury reviewed the instructions and then considered each of the approximately 700 questions it needed to answer (initial jury form is embedded below). As we noted in an update to our post on Friday, about half an hour after the ruling was read out -- and long after most of the press stopped paying attention -- the judge announced at least two problems with the ruling, where the jury had awarded damages, despite not finding infringement.
As we said on Friday, that certainly raised significant questions about how carefully the jury actually reviewed the issues in question. While some said it could have just been a clerical error in answering all the questions, that appears not to be the case. Because after the judge instructed the jury to fix the mistakes, they didn't reassign those damages elsewhere, they just wiped them off the slate. Besides, even if you were to argue it was merely a mistake, that's no excuse. This "mistake" could have ended up costing millions of dollars. That's quite a "mistake."
Over at Groklaw, they're discussing this and other evidence of jury misconduct. The awarding of damages for things they found didn't infringe was already pretty bad, but some of the other details highlight how the jury clearly did not read the jury instructions (or bother to comprehend them).
"We wanted to make sure the message we sent was not just a slap on the wrist," Hogan said. "We wanted to make sure it was sufficiently high to be painful, but not unreasonable."
That sounds nice, except... patent awards are only supposed to be about making the patent holder whole, not about punishing the infringer. And, in fact, the jury instructions clearly stated this:
The amount of those damages must be adequate to compensate the patent holder for the infringement. A damages award should put the patent holder in approximately the financial position it would have been in had the infringement not occurred, but in no event may the damages award be less than a reasonable royalty. You should keep in mind that the damages you award are meant to compensate the patent holder and not to punish an infringer.
And yet here's the jury foreman flat out admitting that they decided to use the award amounts to punish Samsung. Elsewhere, it becomes pretty clear that Hogan was hardly an impartial juror. He has his own patent, 7,352,953 on "recording and storing video information." That, by itself, does not automatically make one biased in favor of the system (I know plenty of people with patents who hate the patent system), but he admitted elsewhere that he ended up making decisions based on how he would feel if it was his patent at stake, rather than on what the law actually says -- and then said he needed to rule as if he were speaking out "for all" patent holders. In an an interview with Bloomberg, he made that bias clear:
“When I got in this case and I started looking at these patents I considered: ‘If this was my patent and I was accused, could I defend it?’” Hogan explained. On the night of Aug. 22, after closing arguments, “a light bulb went on in my head,” he said. “I thought, I need to do this for all of them.”
He then told Bloomberg that "he explained his thinking to his fellow jurors" and that seemed to drive the discussion. An interview with another juror, over at News.com, confirmed that Hogan's views focused the jury, with one juror admitting that they just started ignoring prior art, because that question was too time consuming. Seriously.
"It didn't dawn on us [that we agreed that Samsung had infringed] on the first day," Ilagan said. "We were debating heavily, especially about the patents on bounce-back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art [about similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents himself...so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art."
"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."
Yeah. Read that sucker again. The jury instructions are again clear that the jury needs to consider the prior art, but according to this juror, Manuel Ilagan, after foreman Hogan talked about his own experience with patents, they decided that prior art was "bogging us down" and they might as well "skip" it.
In the long run, the jury verdict probably won't matter much, because this case would have been appealed no matter what. But these kinds of stories certainly give Samsung plenty of fodder to ask the judge to toss out the jury verdict already. It also raises questions, yet again, about why we allow juries on patent trials. This has been a big problem for a long time and the results here only serve to emphasize that fact.
Just a few weeks ago, we wrote about RIM getting hit with yet another crazy patent infringement award, after a jury sided with Mformation and told RIM to pay $147.2 million. However, as often happens in these kinds of cases, RIM then sought a judgment as a matter of law (JMOL) -- effectively a finding from the judge that, even though a jury ruled one way, it did not have enough evidence to do so. Those aren't often granted, but in this case... the judge dumped the jury verdict.
After considering motions presented by both parties, as well as the jury verdict (which was announced by RIM on July 14, 2012), the Judge determined that RIM had not infringed on Mformation's patent. In granting RIM's motion, the Judge also vacated the $147.2 million jury award, which means that RIM is not required to make any payment to Mformation.
Mformation can (and almost certainly will) appeal, though a successful appeal would just take things back to square one, meaning a new district court trial.
Stories like this are why there have been some efforts made to get juries out of patent trials...
Steven sent over a story out of Australia, where the guy accused of a triple murder (an adult couple and their 16-year-old daughter), has had his name "suppressed" by the court, in an effort to keep the jury from pre-judging the guy. However, before that could happen, the guy's name got out and quickly spread all over Facebook, leading some to claim that this is Facebook's fault:
"Because Facebook is such an interactive site there could be tens of thousands of people who have access to the name," barrister Craig Caldicott said.
"It may have a huge impact on justice because a potential juror may have access to that information and opinions that have been published.
"Facebook are in breach of the suppression order -- it's the company who put it out there."
Frankly, almost nothing Caldicott says here makes sense to me, other than the fact that many people might have access to the name. However, I honestly don't see how the name would have impact on justice. A potential juror could know everything about the case -- three people stabbed in their home, etc. -- without knowing the guy's name. How would knowing or not knowing his name make any difference at all? Separately, it's not Facebook that put the information out there, but the users, people in the community who wanted to share that information. The information is effectively public information, and it's silly to then blame a company, because its users are spreading information that is already widely known.
Another oddity in the story is the news that the victims' family had to spend time asking Facebook to take down the name:
Mourning family members and memorial page administrators spent the afternoon trying to delete all references to the man, but his name was public knowledge well before his court appearance.
I don't understand why they should be doing this at all. The name is out there -- and you'd almost think they'd like the name to be out there, rather than trying to hide it. I guess they're afraid that it will negatively impact the trial, but again, I'm at a loss for how the name makes any difference if people already know the actual details of the murder.
from the write-this-100-times-on-the-blackboard dept
We've written many, many times about how technology is invading the courtroom in ways that courts still aren't entirely prepared to handle. Social networking sites are definitely becoming an issue. There was the juror who Twittered during a trial, and almost led to a retrial. There was the juror who sent a MySpace message to the defendant. But, of course, the social network that pops up all the time with juries is Facebook. There was the case where jurors became Facebook friends with each other, and another where a juror asked her friends on Facebook, whether she should go with guilty/not guilty. In a lot of cases, these users are just using Facebook/Twitter/MySpace the way they normally would -- as an informal way of communication. But that doesn't mean judges have to like it.
Perhaps most interesting of all, however, is how this all came to light. Apparently, the 17-year-old son of the lawyer for the defendant found the comment on Facebook, told his father, who brought it to the court's attention. Kids these days...
We've discussed numerous court cases where modern technology has caused significant procedural problems from "the old ways" of doing things. CitMediaLaw points us to a story that includes two more cases, both in Maryland. In one, lawyers are seeking a new trial because some of the jurors became Facebook "friends" during the trial. This follows on the news that Florida is forbidding judges from friending lawyers on social networking sites, but is it reasonable to prevent jurors from friending each other? For many Facebook users, "friending" people you meet is quite natural and something you do almost immediately upon meeting someone new. So it should be no surprise that some jurors would choose to quickly friend each other. It's hard to see how that would make the results of the jury verdict suspect, however.
The second case involved jurors using Wikipedia to look up some terms. This is hardly a new concept. Some judges these days are specifically warning jurors not to use the internet to look up anything related to a case, but for a generation of folks who consider internet research to be an adjunct part of the thinking process, it's not hard to recognize why many would ignore this, and not think they're doing anything wrong (and they might have a good argument). The real question is whether or not there are reasonable ways to change the way the jury system works to allow for what many people consider perfectly natural: doing additional research on their own. For those who are comfortable with the old system, this may seem like a horrific idea (and yes, we all understand the reasons why the current system wants to limit things to just what's said in the courtroom). However, at some point the system may need to recognize that an artificial constraint on learning about the details of the case may not actually be the best system.