The Sports & Entertainment Law Playbook

For a while, it's seemed like the tides had turned on copyright trolls, as federal court judges appear to be more and more skeptical of the (lack of) merits to the concept and strategy behind mass copyright litigation. But a recent decision by a New Jersey federal court magistrate judge seems to send the opposite message—for copyright trolls not to give up, that the courthouse doors are still very much open. At least that's the message I inferred from the headline in the New Jersey Law Journal "Multiple John Doe Defendants Permitted in BitTorrent Case" (subscription required).

If the issues in this case and this latest decision weren't an ongoing focus of my practice, I probably wouldn't have taken the time to look up the case and download the opinion, which is what I did, and much to my surprise, the decision was anything but a windfall for plaintiff Malibu Media LLC, a California distributor of pornographic films. Indeed, the court went through a seemingly reasoned analysis of the legal questions involved when deciding a motion to quash a subpoena, in accordance with FRCP 45(c)(3). The primary issues the court addressed were whether joinder was proper, whether the information sought by the subpoena was relevant, and whether the plaintiff is entitled to pursue its claims for relief as stated in the lawsuit.

The court dealt with the first two issues methodically, and resolved them in favor of denying the motion to quash. When arriving at the third factor, however, the court did not engage in much, if any analysis. The court quoted a case cited in the motion to quash, and then proceeds to its conclusion:

To be clear, the Court certainly does not condone the use of this litigation, and any attendant threat of embarrassment, to coerce any defendant to settle. As noted above, the [court's prior order] requires plaintiff to ensure it has an adequate factual basis before seeking to file an Amended Complaint naming any proper defendant, and that the Court, by granting plaintiff’s request for expedited discovery, has not authorized plaintiff to rely solely on the subscriber’s association with the IP address to supply that basis.

It seemed like the court didn't give much thought to the final argument raised in the motion to quash, and so I went back to re-read from the beginning of the opinion, which is when it occurred to me that the motion had been filed pro se (i.e. by the John Doe defendant himself, rather than by an attorney). A bad idea.

Most attorneys (myself included) take cases like these on a fixed fee basis, usually for less than what the copyright trolls are offering to settle for. The attorneys on the plaintiffs' side know what they're doing. They're familiar with the process, having done it numerous times before, and they have their arguments, briefs, and motions already prepared and ready to file. On top of that, the statutory penalties for copyright infringement are obscene (no pun intended), up to $150,000 for willful infringement, plus attorney's fees. All of that adds up to a less than desirable situation for someone to attempt to represent themselves in court.

But I digress. Regardless of the fact that it's a bad idea to try to defend yourself in a copyright infringement lawsuit, I wonder whether the outcome would have been the same if the motion had been properly drafted and filed by an Internet law or copyright attorney. The bigger problem is this, however: This most recent decision appears to be one of the few that sides with the plaintiff–copyright trolls; it therefore could have a negative precedential effect on future motions to quash filed against copyright trolls. Fortunately, the court's decision is marked "not for publication," but seeing as how the New Jersey Law Journal wrote about it, and I found the decision at the U.S. Court's website in less than 60 seconds, I'm not confident that the decision won't have any lingering effect.

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Rutgers University has apparently decided to fire head basketball coach Mike Rice, after ESPN aired secret video footage of the coach's behavior during practice sessions in his first two seasons in Piscataway. Athletic Director Tim Pernetti, who hired Rice shortly after taking the helm at Rutgers, suspended and fined the coach back in December, when he first learned about the tapes, which show Rice throwing basketballs at players' heads, and using excessive profanity and gay slurs.

After ESPN aired the video on national television, public outcry erupted for the coach's dismissal. The National College Players Association issued a statement calling for Rice to be fired; reportedly, LeBron James and his Miami Heat teammates were angered by the coach's behavior as well. Even NJ Governor Chris Christie weighed in on the issue (no pun intended), saying that he was "deeply disturbed" by the way the coach conducted himself.

Regardless of whether Rice's behavior was cause for termination, it looks as though he was punished twice for the same conduct. Again, the video footage was filmed during the coach's first two seasons at Rutgers, between 2010 and 2012. In December, AD Tim Pernetti suspended Rice for three games, and fined him $50,000. Since then, there have been no new reports or allegations of misconduct by the coach. So, in essence, he was fired for the same thing for which he was previously suspended and fined. In constitutional law, that's called double jeopardy, though I don't believe that that has much, if any, bearing on employment law. Even if firing Rice was the right thing to do, from a moral perspective, or for public relations, Rutgers is still obligated to honor the coach's employment contract (which I have not seen).

The contract probably allows the university to fire the coach for cause, and it's tough to argue that what he did wasn't cause for termination. But it's hard to imagine that the contract would allow the university to discipline the coach twice for the same conduct. If I were Coach Rice, I'd be speaking with an experienced contracts attorney. Don't get me wrong, it's highly unlikely that he'll get his job back, but there's a strong argument that Rutgers should have to buy out the contract, or, at very least, return the $75,000 he lost as a result of the suspension and fine they imposed on him in December. Rather than firing Rice for the same thing they previously fined and suspended him for, Rutgers would've been better off to fire the coach for his performance—or lack thereof—the Scarlet Knights failed to finish above .500 this past season, with an even worse 5–13 record in the soon-to-be-defunct Big East Conference.

Whether on the phone, by email, or at cocktail parties, people routinely ask me questions relating to the fair use doctrine. Indeed, fair use is one of the most misunderstood legal doctrines on the books. The reason it causes so many misunderstandings is that applying the doctrine's four-factor analysis will rarely, if ever, produce a clear answer as to whether the use in question is in fact fair use. Among the most common fair use misconceptions are that "it's okay to 'borrow' the protected material if it's for educational purposes," or "it's okay if the use is de minimis." (A fancy Latin word for 'small,' 'nominal,' or 'insignificant.')

One of the reasons for the latter misconception is only reinforced by last week's ruling by the Ninth Circuit Court of Appeals, in the case alleging that the critically acclaimed Broadway show Jersey Boys misappropriated a 7-second clip of the Ed Sullivan Show. Many folks will hear about the court's decision, or read about in the news, and will conclude (wrongfully so) that the reason the court found that the use of the TV show clip was okay was because it was only seven seconds long. Although the fact that the clip was indeed short, relative to the overall length of the show, the length of the borrowed material was just one of many factors that the court considered; moreover, although the court mentions that the clip was 7-seconds long six times in its 13-page opinion (PDF), the holding portion of the opinion says nothing about the length of the clip. That is telling (but probably only to those who are legally trained). A court's holding is the part of its decision that means something, or requires or prohibits some specific action. This was the Ninth Circuit's holding in the Jersey Boys' fair use case:

In the end, we are left with the following conclusion: [Jersey Boys'] use of the clip did not harm SOFA’s copyright in The Ed Sullivan Show, and society’s enjoyment of [the Broadway show] is enhanced with its inclusion. This case is a good example of why the “fair use” doctrine exists.

The bottom line is this: The penalties for copyright & trademark infringement can be substantial, even crippling. Don't ever assume that you can borrow someone else's material based on the fair use doctrine. Before you "borrow" something for your movie, song, advertisement, website, blog, photograph, etc., speak to an attorney who is familiar with the fair use doctrine.

Earlier: Camera Phones, Copyright Infringement & The Fair Use Doctrine

Photo credit: Flickr.com

UPDATED 2013-01-03 12:19:44 ET

The 43-page complaint is available here (PDF). To be fair, I must admit that I haven't had time to read the whole complaint yet, but I did see trial attorney Max Kennerly's (@MaxKennerly) detailed analysis over on his Litigation and Trial blog (4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground). In a nutshell, Kennerly thinks there are issues with standing to bring the lawsuit.

Because I haven't done the research, I'm not in a position to agree or disagree, however, I agree wholeheartedly with Max's final point, which goes to the merits of the case: 

[A]ntitrust cases are increasingly difficult to win, and courts have generally sided with the NCAA on issues relating to sanctions.

That is not to say that I agree with the result itself, only that I agree that the Commonwealth will probably lose. Before the suit was filed, I mentioned that I was "intrigued," and that is because I like to examine the way other attorneys deal with peculiar circumstances that make it difficult to get their clients the relief they want. So, with that in mind, I will be watching the way this case develops.

EARLIER

Pennsylvania Governor Tom Corbett has scheduled a press conference today in State College. According to Good Morning America's Josh Elliott (@JoshElliottABC), he's planning to file a lawsuit against the NCAA, over the $60 million fine it levied against Penn State as a consequence of the Jerry Sandusky scandal.

This is an intriguing idea to me, so I poked around a little online, but I didn't find anymore details on the suit. My first thought was that the commonwealth of Pennsylvania was going to go after the NCAA for unjust enrichment—receiving a benefit for which they bestowed nothing in return—and although I like the concept, I'm not confident that it's a winner. There could be an antitrust claim there as well, but again, it seems like a stretch.

The theory behind the suit is likely to be that since Penn State is a state institution, the monetary penalty demanded from them is ultimately being paid by the taxpayers, who aren't a party to any contract or franchise agreement with the NCAA. This theory could support either a claim based in contract (e.g. unjust enrichment) or antitrust. Sometimes, though, a lawsuit like that is used as a strategic, posturing device, to influence future behavior and/or legislation, rather than to win a pile of cash.

If the suit is filed today in U.S. District Court for the Middle District of Pennsylvania, as is rumored, then I should be able to get a copy of the complaint, which I'll post here later.

Photo Credit: Rick Smith/Flickr

Today, it seems, is the end of the line for Lance Armstrong. I remember what I said—here, here, and here, on Twitter, and probably elsewhere too—that despite all the news reports and controversy surrounding USADA's indictment of Lance Armstrong for engaging in a systematic pattern doping, he was still a 7-time Tour de France winner. Now, not so much.

Earlier today, Patrick McQuaid, president of the International Cycling Union (aka UCI) announced that the UCI was adopting USADA's findings and imposing their recommended sanctions (strip all 7 #TdF victories, plus lifetime ban from cycling). McQuaid is the most senior administrative individual in all of cycling, thus, he and his organization were the only ones with jurisdiction or authority to take the action that USADA threatened. In a press conference from Geneva, Switzerland, McQuaid said this:

Lance Armstrong has no place in cycling, and he deserves to be forgotten in cycling.

So is this post my personal mea culpa? You could say that. But for the record, I never said that Armstrong never doped. He did. So did a lot of other cyclists. Some of them got caught; some didn't. In spite of all the terrible things we're learning about the 15+ year conspiracy led by Lance Armstrong, I still don't believe that it was fair or just to go back in time and take away his #TdF titles. We set a very bad precedent when we turn back the clock to try and change something that is already done and decided. What's done is done, and hindsight is always 20/20. If, when it's all said and done, it's brutally obvious that the guy was a scumbag, so be it.

Photo credit: Richard Masoner, Flickr