3.20.14 SOME SETTLING MAY OCCUR

This article originally appeared in the 3.20.14 issue of Metroland.

            Well, lookie here.  The other day I was loathing having to write this column this week.  A combo of late-winter malaise, persistent sickness, and catastrophic car trouble had reduced my spirits to a level even bourbon couldn’t fix.  I could write about spying (again), crappy trade agreements (again), or maybe the lame irrelevance of the SXSW festival (depressing).  Sigh.  Then, while surveying the world in lieu of much-needed sleep last night at 2 AM, I discovered that three of the biggest and most significant pending copyright lawsuits -- all matters that we’ve talked about at length here -- all settled on Tuesday.  Boink!

            Settling a lawsuit is generally good for the litigants; it ends an expensive and unpleasant chapter, not to mention deep-sixing business uncertainty and all that negative juju.  There’s an old legal canard that a good settlement is one that leaves all parties equally unhappy.  But for cases like these that involve big important legal questions, settlement usually means those questions won’t get answered.   Which is a drag for us lawyers.  Plus, in copyright law, where so many vital issues are fraught with uncertainty (a copyright lawyer friend once said that the correct answer to any copyright question is “it depends”), settlement just adds to that uncertainty.  And uncertainty in the law always favors the side with the most money, the side that can sustain a long, punishing lawsuit dancing on the head of uncertainty.  Uncertainty often makes the less-monied party fold like a two-dollar suitcase, no matter what the merits or righteousness of that party’s case, because the risks of going forward are too great.

            But these settlements weren’t all bad news.  First, the big kahuna, Viacom v. Google, where Big Media giant Viacom tried to extract mountains of Google moolah because lots of Viacom’s oh-so-precious intellectual property wound up being stuck up on YouTube (which is owned by Google) by people like you and me.  This case has been lurching around the courts for seven long years and Viacom has mostly been getting its corporate ass kicked every step of the way.  The lawsuit was a classic example of Big Media trying to slough off its responsibility to police its copyrights to somebody else, as well as another Quixotic attempt to kill, or at least maim, a disruptive technology that challenges its outdated business model.  Reports are that no money changed hands in the settlement, which means that Viacom finally realized that the millions it was paying lawyers to keep this lawsuit going wasn’t generating any shareholder value.  And shareholder value is all that matters to “people” (my friend) like Viacom.

            Then there’s Richard Prince and his Rasta photo “appropriation” case.  After a hideous trial court ruling finding Prince liable for willful copyright infringement, he largely won his appeal that  putting blue splotches on a professional photographer’s work was transformative fair use.  This decision that was probably correct in result but was widely criticized for lacking much in the way of meaningful analysis or guidance about what a proper standard for fair use might be.  The appeals court ruled that most of Prince’s 30+ pieces were protected by fair use and sent the case back to the trial court to rule on the remaining handful of works.  There’s no word on what the terms of the settlement were, but I’m guessing the photographer realized that even if he was to “win” on his remaining infringement claims, the amount of his damage award would be less that what it would cost to get him there.  Plus, he might be at the wrong end of an attorneys’ fee award, since Prince already won the war. 

            Then, finally, there’s the Beastie Boys verses Goldiebox case, where the girls’ science toy company used the Beastie’s song “Girls” (with changed lyrics) in a YouTube ad without permission.  I sided hard with the toy company; the use of the song was definitely fair use, and the song wasn’t much of a song to begin with.  A lot of people sided with the Beasties, arguing that the toy company’s campaign was nothing but a cynical attempt to bait the Beasties and generate loads of free publicity (which it did).  Which is an argument that has nothing to do with fair use – it’s really a popularity contest masquerading as a legal argument.  In any event, the settlement involved a public apology by Goldiebox (which is on the Goldiebox webpage) and an agreement that it will donate a percentage of its revenue to a charity of the Beastie’s choosing, one that supports science and engineering education for young girls.

            This Goldiebox settlement is a shame legally speaking, because the fair use argument was crisp and the likely ruling in Goldiebox’s favor would have been healthy for a painfully murky area of law.  But the settlement allows everybody to save face, it’s a feel-good settlement, and it puts some money in some good places, and not just in somebody’s pocket. 

            So it’s all good.  For now.

Paul Rapp is a Berkshires-based IP attorney who knows what he likes and likes what he knows.