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Ninth Circuit Revises UMG Recordings v. Shelter Capital Opinion

Veoh logoI want to briefly interrupt the hubbub over Kirtsaeng (which I fully intend to contribute to at some point) to note that last week the Ninth Circuit released an updated opinion in UMG Recordings v. Shelter Capital Partners, the Section 512 immunity case it decided back in December 2011. The old opinion, 667 F.3d 1022 (9th Cir. 2011), is now vacated. Apparently the panel conducted a rehearing and the new opinion modifies the old one in a few ways, primarily to bring the opinion in line with the Second Circuit’s opinion in Viacom v. YouTube, 676 F.3d 19 (2d Cir. 2012). I’ve created a redlined version showing the changes (aside from minor differences like page numbers).

That’s a pretty interesting development, I think. I can’t think of another copyright case where an appellate court changed its opinion after having been persuaded by the reasoning in another circuit’s opinion. Certainly it would be better if the Ninth and the Second Circuits “talked to each other” more often in this way.

In any event, the outcome is still the same: UMG lost on all of its arguments that Veoh didn’t fall within the safe harbor, and that Veoh’s investors were secondarily liable for infringement; Veoh still loses on its argument that its Rule 68 offer of judgement should get it attorneys fees. But there are several important alterations to the reasoning. Read More »Ninth Circuit Revises UMG Recordings v. Shelter Capital Opinion

Kirtsaeng: What is a “work”?

Does it advance the analytic ball re: the Kirtsaeng opinions to ask “what is a work?” in the first sale and importation contexts?

A friend and deep-thinking colleague asked me that question, knowing that I have a long-standing interest in the definition of “works,” and “inventions,” and “marks,” and “things” of all legal sorts. More precisely, the question was lobbed in my direction in this way:  If a “work” is reproduced in copies in the US for US consumers, and also reproduced in copies in another country for that country’s consumers (let us say, Thailand, just for argument’s sake), then is the Thai “work” the same work as the US “work,” or is it a separate work? If it’s a separate work, then perhaps Thai law should dictate the treatment of re-sales and exports and imports of the Thai copies, rather than US law. And where does that lead us?

Here’s my very provisional outline of an answer. Corrections and improvements are welcome!Read More »Kirtsaeng: What is a “work”?